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56th  Congress,  |  HOUSE  OF  REPRESENTATIVES,  i  Document 

2d  Session.       f  «  ]    No.  551. 


AJ)IGEST 

OF 

INTEENATIONAL  LAAV 


AS    EMBODIED    IN 

DIPLOMATIC  DISCUSSIONS,  TREATIES  AND 

OTHER  INTERNATIONAL  AGREEMENTS,  INTERNATIONAL 

AWARDS,    THE   DPXISIONS   OF  MUNICIPAL  COURTS,   AND 

THE  WRITINGS  OF  JURISTS, 

AND    ESPECIALLY    IN 

DOCUMENTS,  PL^BLISHED  AND  UNPUBLISHED, 
ISSUED  BY  PRESIDENTS  AND  SECRETARIES  OF  STATE  OF 

THE  UNITED  STATES, 

THE  OPINIONS  OF  THE  ATTORNEYS- GENERAL,  AND  THE 

DECISIONS   OF   COURTS,   FEDERAL 

AND  STATE. 


JOHN  BASSETT  I^OORE,  LL.  D., 

Hamilton  Fish  Professor  of  International  Law  and  Diplomacy,  Columbia  University, 
New  York:  Associate  of  the  Institute  of  International  Law;  Sometime 
Third  Assistant  Secretary  of  State  and  Assistant  Secre- 
tary of  State  of  the  United  States; 
Author  of  a  Treatise  on  Extradition  and  Interstate  Rendition,  of  American  Notes  on 
the  Conflict  of  Laws,  of  a  History  and  Digest  of  International  Arbitra- 
tions, of  an  Exposition  of  the  Spirit  and  Achievements 
of  American  Diplomacy,  etc. 


IN   EIGHT   VOLUMES 

(THE    EIGHTH    BEING    INDEXICAL] 


VOLUME  I. 


WASHINGTON: 

GOVERNMENT    PRINTING     OFFICE 

1906. 


I/./ 


PREFACE 


By  the  act  of  Congress  of  February  20,  1897,  a  provision  was  made 
for  "  revising,  reinclexing,  and  otherwise  completing  and  perfecting 
by  the  aid  of  such  documents  as  may  be  useful,  the  second  edition  of 
the  Digest  of  the  International  Law  of  the  United  States."  The 
work  thus  referred  to  was  the  "  Digest  of  the  International  Law  of 
the  United  States,"  edited  by  Francis  Wharton,  LLD.,  which  was 
published  in  three  volumes  in  1880,  and  of  Avhich  a  second  issue, 
embracing  about  160  pages  of  new  matter,  added  to  the  third  volume, 
was  made  in  1887.  It  was  my  fortune  to  have  been  to  some  extent 
connected,  in  a  contributory  capacity,  with  the  preparation  of  that 
work.  In  a  pamphlet  submitted  to  Congress,  before  the  printing  of 
his  Avork  was  authorized,  Doctor  AYharton  was  so  good  as  to  say:  "  I 
am  indebted  to  John  B.  Moore,  esq.,  of  the  Department  of  State,  to 
whose  great  aid  in  other  respects  I  am  glad  to  acknowledge  my  obliga- 
tions, for  a  compilation  of  the  rulings  of  conunissions  established  by 
the  United  States,  in  connection  with  other  powers,  for  the  settlement 
of  points  in  international  dispute."  In  the  preface  to  his  Digest,  the 
learned  editor  repeated  this  acknowledgment,  but  stated  that  the 
"  digest  of  the  rulings  of  the  international  commissions "  would 
"  occupy  a  sejiarate  volume."  It  proved,  indeed,  to  be  a  longer  and 
more  laborious  task  than  the  work  of  Avhich  it  was  originally  expected 
to  form  a  part,  and  eventually  grew  into  the  "'  History  and  Digest  of 
International  Arbitrations,"  in  six  volumes,  which  Avas  published  in 
1898,  by  authority  of  Congress,  as  an  independent  Avork.  My  actual 
contribution  to  the  "  Digest  of  the  International  LaAv  of  the  United 
States  "  embraced  the  decisions  of  the  courts,  the  opinions  of  the 
Attorneys-deneral,  the  essential  framcAvork  of  the  chapter  on  the 
fisheries,  and  certain  minor  matters. 

Of  the  original  conception  of  the  ])lan  of  liis  Digest,  and  of  the 
order  and  arrangement,  the  entire  merit  belongs  to  Doctor  Wharton. 
He  Avas  an  incessant  and  heroic  AAorker.  and  the  preparation  of  his 
Digest  in  tJie  space  of  two  years  Avas,  cA'en  AA'ith  such  secondary  aid 
as  he  obtained  from  various  other  ])ersons,  a  remarkable  feat.  But 
certain  results  Avere  inevitable.  In  the  performance  of  such  a  task 
time. is  an  essential  ingredient.  Important  records  were  left  unex- 
plored, or  AAcre  only  cursorily  inspected;  the  significance  of  docu- 


IV  PREFACE. 

inents  was  not  always  caught  or  coiroctly  t-ouvevod;  and  as  the  refer- 
ences to  Mianiis(rii)ts  were,  except  for  the  apparent  dates,  wholly  in- 
definite, it  was  often  iin})ossil)lt'  afterwards  to  trace  and  verify  them. 

Personal  experience  not  only  in  the  use  of  the  International  Law 
I)i«rest.  l)Mt  also  in  the  prosecution  of  researches  for  my  History  and 
Di<rest  of  International  Arl)itrations.  had  exceptionally  familiarized 
me  with  these  conditions,  when  in  June,  lSi)7,  I  inidertook  the  work 
authorized  hy  the  act  of  the  pi-ecedinf>:  February.  But.  as  I  proceeded 
with  the  task,  I  became  more  and  more  firndy  convinced  that,  if  it 
was  to  be  performed  })r()perly,  it  nnist  be  carried  out  on  a  scale  nuich 
larger  than  luid  apparently  been  contemplated.  Not  only  was  it 
evident  that  much  of  the  new  material  that  I  was  accuimdating 
could  not  l)e  classified  under  the  titles  of  the  previous  work,  but  it 
was  also  found  on  investigation  that  in  many  instances  the  disposi- 
tion of  the  old  nniterial  should  be  changed.  In  these  circumstances, 
the  results  of  a  mere  revision  nuist  have  been  both  inadecpuite  and 
incongruous. 

A  revision,  with  supplementary  sections,  could  hardly  have  been 
more  satisfactory.  A  third  course  was  to  adopt  a  new  and  in(lp- 
pendent  plan,  comj)rehending  the  entire  subject :  and  this  solution  of 
4he  |)roblem.  although  the  most  onerous,  was  believed  to  be  the  only 
one  that  was  comj)atible  with  scientific  principles. 

In  the  execution  of  this  design  two  points  of  capital  importance 
have  ever  been  borne  in  mind.  One  is  that  mere  extracts  from  state 
papeiN  or  judicial  decisions  can  not  be  safely  relied  on  as  guides  to 
the  law.  They  may  indeed  be  positively  misleading.  P^specially  is 
this  true  of  state  pajiers,  in  which  arguments  are  often  contentiously 
put  forth  which  by  no  means  represent  the  eventual  view  of  the 
government  in  Avhose  behalf  they  were  employed.  Instead,  therefore, 
of  merely  ([noting  extracts  from  partictdar  documents,  it  has  been 
my  aim  to  give  the  history  of  the  cases  in  which  they  were  issued,  and, 
by  showing  what  was  finally  done,  to  disclose  the  opinion  that  in  the 
end  prevailed.  In  this  way,  too.  the  views  of  both  sides  are  presented. 
It  may  be  suj)erfluous  to  say  that  there  is,  strictly  speaking,  no  such 
thing  as  '•  the  international  law  of  the  United  States,''  or  the  '"  inter- 
national law  "  of  any  other  ])articu]ar  country.  The  phrase  is  itself 
a  misnomer,  and  conveys  an  imi)]ication  which  the  (iovernment  of 
the  I'nited  States  has  always  been  the  first  to  repel,  for  it  has  ever 
i)een  the  j^osition  of  tlu'  Tnited  States  that  international  law  is  a  body 
of  rules  common  to  all  civilized  nations,  etiiially  binding  ui)on  all  and 
impartially  governing  their  nuitual  intercourse.  It  will  also  be 
observed  that,  while  the  work  bears  the  name  and  the  chara<'ter  of  a 
digest,  it  also  contains  nnich  that  is  of  an  expository  miture,  in  a  form 
suitable  to  a  treatise. 

The  other  point  to  which  I  have  endeavored  specially  to  attend  is, 


PREFACE.  V 

in  dealing  with  manuscript  records,  to  avoid  giving  brief  glosses 
which  convey  no  intimation  of  the  question  under  consideration,  but 
to  follow  and,  wherever  practicable,  quote  the  text,  and  to  give, 
Ix^sides.  enough  of  the  facts  to  render  the  application  apjjarent.  This 
I  conceive  to  be  of  the  essence  of  a  digest,  especially  of  unpublished 
papers  which  the  reader  can  not  himself  consult.  It  will  also  be 
observed  that  I  have  given  volume  and  page  of  manuscript  citations 
so  that  the  originals  can  immediately  and  certainly  be  reached.  The 
documents  were  first  found,  read,  and  marked  by  myself  personally, 
the  figures  of  reference  were  then  taken  by  my  copyists,  and  these 
figures  have  all  been  verified  and  omissions  supplied  in  the  proofs. 

Of  the  present  work,  the  matter  in  AMiarton's  Digest,  although  it 
is  in  substance  entirely  preserved,  and  where  textually  retained  is 
usually  quoted,  forms  only  a  small  part.  Quotations  from  printed 
sources,  which  are  accessible  to  the  general  reader,  have  usually  been 
abridged  and  worked  into  the  complete  statement  of  the  case,  which 
it  has  been  my  object  to  furnish. 

But  in  no  instance,  it  is  believed,  has  a  quotation  from  manuscripts 
been  curtailed.  On  the  contrary  it  has  been  my  rule  to  enlarge  the 
quotations  from  such  sources,  with  a  view  by  this  and  other  means 
to  increase  their  scientific  value.  The  quantity  of  the  material  dealt 
with,  from  all  sources,  has  been  very  great.  Owing  to  its  heavy  accu- 
mulation and  the  necessity  of  prosecuting  the  work  of  analysis,  classi- 
fication, and  digesting.  I  closed  the  systematic  and  minute  gleaning 
of  the  manuscripts  on  July  1,  1901,  down  to  which  date  I  had  carried 
it,  l>eginning  with  the  earliest  records  of  the  Department  of  State. 
Since  that  date  I  have  drawn  on  the  manuscripts  only  in  the  treat- 
ment of  special  (juestions  or  events  of  exceptional  importance.  The 
exploration  of  printed  sources  has  been  steadily  carried  on  up  to  the 
time  of  printing.  The  total  nuiss  of  the  matter  was  nuich  augmented 
by  the  great  international  transactions  that  have  taken  place  since 
the  beginning  of  the  year  189S.  In  my  fourth  chapter,  in  particular, 
on  the  ac(iuisition  and  loss  of  sovereignty,  may  be  seen  some  of  the 
contributions  resulting  from  the  conflict  with  Spain.  I  may  also 
refer  to  the  sections  on  guano  islands,  in  the  same  chapter,"  for  an 
illustration  of  the  minute  care  which  the  preparation  of  the  work,  on 
the  plan  hei-etofore  outlined,  has  often  entailed.  Even  now,  after 
the  lapse  of  nearly  nine  years  (one  of  which,  however,  was  almost 
wholly  given  to  the  public  service).  I  could  scarcely  have  brought  it 
to  conipleti(m,  but  for  the  assistance  derived  from  my  previous  labors 
on  the  History  and  Digest  of  International  Arbitrations. 

I  desire  to  make  acknowledgment  of  the  energetic  and  efficient 
supervision  by  Mr.  James  T.  DuBois  of  the  proof  reading  of  the  five 

a  §§112-115. 


VI  PREFACE. 

last  volumes  of  the  text,  as  well  as  of  the  exact  and  intelligent  care 
bestowed  bv  Messrs.  Henry  B.  Arnies,  Samuel  B.  Crandall,  and 
Richard  W.  Flournoy.  jr.,  all  of  the  Department  of  State,  on  the 
comijarison  of  proofs  and  the  verilication  of  references. 

To  Mr.  Dudley  Odell  McCiovnev,  at  present  fellow  in  international 
law  in  Columbia  University,  T  wish  to  accord  the  credit  for  tlie  index. 
It  will,  together  with  the  (able  of  cases  and  the  list  of  documents 
cited,  occupy  a  separate  volume;  and  I  doubt  not  that  its  great  merits, 
including  its  fullness  and  orderly  arrangement,  will  l)e  generally 
recogni/A'd. 

I  wish  also  to  express  my  appreciation  of  the  helpfulness  of  my 
secretary,  Mr.  Jacob  II.  Goetz.  now  a  member  of  the  New  Voik  bar, 
who,  besides  rendering  stenographic  and  other  aid,  has  prepared  the 
table  of  cases  and  the  list  of  documents  cited. 

After  twenty  years'  experience  with  the  (lovernment  Printing 
Office.  I  am  glad  to  testify  to  the  uniform  courtesy,  i)roniptitude,  and 
efficiency  of  the  officials  with  whom  my  business  has  been  conducted. 

John  B.  Moore. 

Nkw  York,  May  J/,  lOUG. 


TABLE  OF  PRESIDENTS  AND  SECRETARIES  OF  STATE. 


Presidents. 


Secretiiries  of  State. 


George    Washington,    Apr.    30, 
1789,  to  Mar.  8,  1797. 


John  Adams,  ^lar.  4,   1797,  to 

Mar.  3,  1801. 
Thomas  Jefferson,  :Mar.  4,  1801, 

to  Mar.  3, 1809. 
James  Madison,  Mar.  4,  1809,  to 

Mar.  3, 1817. 
James  Monroe,  Mar.  4,  1817,  to 

Mar.  3, 1825. 

John   Quincy  Adams,   Mar.    4, 

1825,  to  Mar.  3, 1829. 
Andrew  Jackson,  Mar.  4,  1829, 

to  Mar.  3, 1837. 


Martin  Van  Buren,  Mar.  4,  1837, 

to  Mar.  3,  1841. 
William  Henrv  Harrison,  ^Iar.4, 

1841,  to  Apr.  4,  1841. 
John   Tvler,    Apr.    6,    1841,    to 

Mar.  3,  1845. 

James  K.  Polk,  Mar.  4,  1845,  to 
Mar.  3,  1849. 

Zacharv  Tavlor,  :Mar.  5,  1849,  to 

Julv9,  1850. 
Millard  Fillmore,  Julv  10,  1850, 

to  Mar.  3,  1853. 

Franklin  Pierce,  Mar.  4,  1853,  to 

Mar.  3,  1857. 
James  Buchanan,  Mar.  4,  1857, 

to  Mar.  3,  1861. 

Abraham  Lincoln,  Mar.  4,  1861, 

to  Apr.  15,  1865. 
Andrew  Johnson,  Apr.  15,  1865, 

to  Mar.  3,  1869. 
Ulvsses  S.  Grant,  Mar.  4,  1869, 

to  Mar.  3,  1877. 


Rutherford  B.   Haves,   Mar.  5, 

1877,  to  Mar.  3,  1881. 
James  A.  (iarfield,  Mar.  4,  1881, 

to  Sept.  19,  1881. 
Chester    A.    Arthur,   Sept.    20, 

1881,  to  Mar.  3,  1885. 


Thomas  Jefferson,  commissioned  Sept.   26,  1789; 

entered  on  duties  Mar.    22,    1790;    served   till 

Dec.  31,  1793. 
Edmund  Randolph,  Jan.  2,  1794,  to  Aug.  20,  1795. 

Timothy  Pickering,  Dec.  10,  1795,  

Timothv  Pickering  (continued)  to  May  12,  1800. 
John  Marshall,  Mav  13,  1800,  to  Mar.  4,  1801. 
James  Madison,  Mar.  5,  1801,  to  Mar.  3,  1809. 

Robert  Smith,  Mar.  6,  1809,  to  Apr.  1,  1811. 
James  Monroe,  Apr.  2,  1811,  to  Mar.  3,  1817. 
John  Quincy  Adams,  commissioned  Mar.  5,  1817; 

entered  on  duties  Sept.  22,  1817;  served  to  Mar. 

3, 1825. 
Henry  Clay,  Mar.  7,  1825,  to  Mar.  3,  1829. 

Martin  Van  Buren,  Mar.  6,  1829  to  Mav  23,  1831. 
Edward  Livingston,  May  24, 1831,  to  May  29, 1833. 
Louis  McLane,  IVIav  29,  1833,  to  June  30,  1834. 

John  Forsyth,  June  27,  1834, 

John  Forsyth  (continued)  to  Mar.  3,  1841. 

Daniel  Webster,  Mar.  5,  1841, 


Daniel  Webster  (continued)  to  Mav  8,  1843. 
Abel  P.  Upshur,  Julv  24,  1843,  to  Feb.  28,  1844. 
John  C.  Calhoun,  Mar.  6,  1844,  to  Mar.  10,  1845. 
James   Buchanan,    commissioned    ^lar.    6,    1845; 

entered  on  duties  Mar.  10,  1845;  served  to  Mar. 

7,  1849. 
John  M.  Clayton,  Mar.  7,  1849, 

John  M.  Clavton  (continued)  to  Julv  22,  1850. 
Daniel  Webster,  July  22,  1850,  to  Oct.  24,  1852. 
Edward  Everett,  Nov.  6,  1852,  to  Mar.  3,  1853. 
William  L.  Marcy,  Mar.  7,  1853,  to  Mar.  6,  1857. 

Lewis  Cass,  Mar.  6,  1857,  to  Dec.  14,  1860. 
Jeremiah  S.  Black,  Dec.  17,  1860,  to  Mar.  6,  1861. 

William  H.  Seward,  Mar.  5,  1861, 


William  H.  Seward  (continued)  to  Mar.  4,  1869. 

Elihu  B.  Washburne,  Mar.  5,  1869,  to  Mar.  16, 1869. 

Hamilton  Fish,  commissioned  Mar.  11,  1869;  en- 
tered on  duties  Mar.  17, 1869;  served  to  Mar.  12, 
1877. 

\\'illiam  M.  Evarts,  Mar.  12,  1877,  to  Mar.  7, 1881. 

James  G.  Blaine,  commissioned  Mar.  5,  1881;  en- 
tered on  duties  Mar.  7,  1881, 

James  (i.  Blaine  (continued)  to  Dvc.  19,  1881. 

Frederick  T.  Frelinghuvsen,  commissioned  Dec. 
12, 1881;  entered  on  duties  Dec.  19, 1881;  served 
to  Mar.  6,  1885. 


VIII  PRESIDENTS    AND    SECRETARIES    OF    STATE. 

I'alile  of  I^fitldents  nud  Secretaries  of  State — Continued. 

Presidents.  Secretaries  of  State. 


(i rover  Cleveland,  Mar.  4, 1885,   •  Thomas  F.  Bavard,  Mar.  6,  1885,  to  Mar.  6,  1889. 

to  Mar.  -A,  lSS*t. 
Benjamin     Harrison,     Mar.    4,     James  (J.  Blaine,  Mar.  5,  1889,  to  June  4,  1892. 

1889,  to  Mar.  8,  189;?.  John  W.  Foster,  June  29,  1892,  to  Feb.  23,  1893. 

Grover  Cleveland,  Mar.  4,  189:5,      Walter  (I  (iresham,  Mar.  (5, 1893,  to  Mav  28,  1895. 

to  Mar.  3.  1897.  Richard  Olnev,  June  8,  1895,  to  Mar.  5,"l897. 

William  McKinlev.  Mar.  4.1897,     John  Shermaii,  Mar.  5,  1897,  to  Apr.  25,  1898. 
to  Sept.  14,  190L 

William  R.  Dav,  Apr.  26,  1898,  to  Sept.  Hi,  1898. 

John  Hay,  Sept.  20,  1898, . 

Theodore   Roosevelt,   Sept.    14,     John  Hay  (continued)  to  Julv  1,  1905. 

1901,  . 

I  Ehhu  Root,  July  7,  1905,  . 


LIST  OF  AUTHORITIES. 


Aubreu  y  Bertodano,  F.  J.  de:  Tratado  juridico-politico  sobre  pressas  de  mar  y 
calidades  (jue  deben  concurrir  para  haeerse  legitiinaniente  el  corso.    Cddiz,  1746. 

Abbott  (Charles),  Lord  Tenterden:  A  Treatise  of  the  Law  relative  to  ^lerchant  Ships 
and  Seamen. 

Abribat,  Jean  Marie:  Le  Detroit  de  Magellan  an  point  de  vue  international.  Paris, 
1902. 

Actas  deias  Sesiones  del  Congreso  Sud-Americano  de  Dereeho  Internacional  Privado. 
Buenos  Aires,  1889. 

Adams,  Charles  Francis:  The  Struggle  for  Neutrality  in  America.  An  address  deliv- 
ered before  the  New  York  Historical  Society,  Dec.  13,  1870.     New  York,  1871. 

Adams,  Charles  Francis:  Life  of  Charles  Francis  Adams.  American  Statesmen 
Series.     Boston,  1900. 

Lee  at  Appomattox  and  other  Papers.     Boston  and  New  York,  1902. 

Adams,  Henry:  Life  of  Albert  Gallatin.     Philadelphia,  1879. 

History  of  the  United  States  of  America.     9  v.     New  York,  1889-91. 

Adams,  John:  Works  of,  with  life  of  the  author,  notes,  etc.,   by  Charles   Francis 

Adams.     10 -v.     Boston,  1850-56. 
Adams,  John  Quincy:  The  Duplicate  Letters,  the  Fisheries  and  the  Mississippi;  Doc- 
uments relating  to  transactions  at  the  negotiation  of  Ghent.     Washington,  1822. 

Memoirs  of;  comprising  portions  of  his  diary  from  1795-1848;  ed.  by  C.  F. 

Adams.     12  v.     Philadelphia,  1874-77. 

Albany  Law  Journal. 

Albertini,  Derecho-Diplomatico  en  sus  Aplicacionesa  las  Republicas  Sud-Americanas. 

Ali.«on,  Sir  Arcbi))ald:  Hi.<tory  of  ]']urope,  from  1789-i815. 

History  of  Europe  from  the  fall  of  Napoleon  in  1815  to  the  accession  of 

Louis  Napoleon  in  1852. 

Allen,  (lardner  W.:  Our  Navy  and  the  Barbary  Corsairs.     Boston  and  New  York, 

1905. 
Almanach  de  Gotha. 

Alumni  Bulletin  of  the  University  of  Virginia. 
American  Academy  (jf  Political  and  Social  Science.     The  Foreign  Policy  of  the  United 

States:  Political  and  Commercial.     Phila<leli>hia,  1899. 

The  Ignited  States  and  Latin  America.     Philadelphia,  1903. 

American  Bar  Association,  Reports  of. 

American  Historical  Association,  Annual  Reports  of. 

American  Historical  Review. 

American  Journal  of  Social  Science. 

American  Magazine  of  History. 

American  Law  Magazine. 

American  Law  Register. 

American  Law  Review. 

American  State  Papers,  Foreign  Relations,  folio. 

Amos,  Sheldon:  Political  and  Legal  Remedies  for  War.     New  York,  1880. 

Angell,  Jos.  Kinnicut:  Treatise  on  the  Common  Law  in  Relation  to  Watercourses. 

Annals  of  the  American  Academy  of  Political  and  Social  Science. 

IX 


X  •  LIST    OF    AinHORITIES, 

Annals  <»f  Congress  of  the  United  States. 

Annuaire  lie  I'Institut  de  Droit  International. 

Annuaire  des  Deux  Monde.^. 

Annual  Hf>rister  (I/>nd<)n). 

Annual  KeiM)rt  of  the  Department  of  Fisheries,  Dominion  of  Canatla,  for  the  year 

ISSti.  *       • 

Archives  Dijilomatitjues. 

Argentina,  Mejnoria  de  Relaeione."  Exteriores. 
Appleton,  Henri:  Des  Effet.-^  <les  Annexions  de  Territoires  sur  les  Dettes  de  I'Etat 

demembrt''  on  annexe,  et  sur  celles  des  Provinces,  D^partements,  et<\,  annexes. 
Aranda,  RicanU):  Coleccion  de  los  Trata<los,  Republica  del  Peru.    4  v.     Lima,  ISHO- 

1S92. 
Arigii,   Nagao:  La  (Juerre  Sino-.Iaponaise  an   jKjint   de  vue  du  droit   international. 

Paris,  KsyH. 
Arnould,  Sir  Joseph:  Treatise  on  the  Law  of  Marine  Insurance  and  Average. 
A.s.>iociation  for  the  Reform  and  CfMlitication  f>f  the  Law  of  Nations,  Reports  of. 
Atlantic  Monthly. 

Aubert,  Louis:  Paix  Japonaise.     Paris,  1906. 

Austin,  John:  Lectures  on  Jurisprudence,  or  the  Philosophy  of  Positive  Law.     2  v. 
Azuni,  D.  .\.:  Systeme  univer.*el  de  ])rincipes  du  droit  maritime  de  1' Europe;  traduit 

de  ritalien,  par  J.  M.  Digeon.     1790. 
Baird,  Henry  M.:   Mmlern  (ireece:  A  Narrative  of  a  Residence  and  Travels  in  that 

Country.     185(5. 
Baker,  Sir  Sherston:  First  Steps  in  International  Law.     London,  1899. 
Baker,  (ieorge  E. :  The  Diplomatic  History  of  the  War  for  the  Union,  being  the  tifth 

volume  of  the  Works  of  William  H.  Seward. 
Balch,  Thomas  Willing:  The  Alaska-Canadian  Frontier.    Philadelphia,  1902. 
Bancroft,  Frederic:  Life  of  William  H.Seward.     2  v.     New  York,  19(X). 
Bancroft,  (ieorge:  History  of  the  Formation  of  the  Constitution  of  the  United  States. 

New  York,  1885. 
Bar,  L.  von:  International  Law,  Private  and  Criminal.     Tians.  with  notes  by  G.  R. 

(iillespie.      E<linburgh,  188:5. 
— Theorie  und    I'raxis    des  internationalen    Privatrechts.     2    v.     Hannover, 

1SS9. 

The  Theory  and  Practice  of  Private  International  Law.    2nd  ed.    Gillespie's 

translation. 

Barnes,  Thurlow  Weed:  .Memoir  of  Thurlow   Weed.     Boston,  1884. 

Barnett,  James  F. :  International  .Agreements  without  the  Advice  and  Con.sent  of 
the  Senate,  in  Yale  Law  Journal,  XV.  (Nov.  &  Dec.  1905),  18,  63;  revised  and 
reprinted  at  (irand  Rapids,  li>06. 

Bate.<,  American  Navigation. 

Beale,  Joseph  Henry,  jr. :  A  Selection  of  Ca.«es  on  the  Conflict  of  I^ws.     3v. 

Bello,  .\ndn's:  Principios  de  Dereclio  Internacional.     2  v.     Madrid,  188.'j. 

Bemis,  (i.:  .\merican  Neutnility:  Its  Honorable  Pa.«t,  Its  Exi)edient  Future.  Bos- 
ton, 1866. 

Pamphlets  on  the  Recognition  of  Belligerency.     Boston,  1865. 

Beliriiig  Sea  Fisheries.     Pa{M'rs  relating  to. 

Benton,  Thomas  Hart:  Thirty  Years'  View;  or  History  of  the  Working  of  the 
American  Government  for  Thirty  Years,  1820-50.     2  v. 

Bernard,  M.:  Four  I  A'ctnres  on  Subjects  Connected  with  Diplomacy.     London,  1868. 

.\  Historical  Account  of  the  Neutrality  of  (Jreat  Britain  during  the  American 

Civil  War.     London,  1870. 

Notes  on  .^ome  C^uestions  Suggested  by  the  Case  of  the  Trent.     Oxford  and 

London,  1862. 


LIST   OF    AUTHORITIES.  XI 

Bernard,  Paul:  Traite  Theorique  et  Pratique  de  I'Extradition.     2  v.     Paris,  1883. 

Bigelow,  John:  Life  of  Franklin. 

Billot,  A.:  Traite  de  I'Extradition.     Paris,  1874. 

Birkhiraer,  Wm.  E. :  Military  Government  and  Martial  Law. 

Bishop,  Joel  P. :  Commentarie.«  on  the  Law  of  Criminal  Procedure. 

Commentaries  on  the  Criminal  Law. 

Marriage,  Divorce,  and  Separation. 

Bismarck,  His  Reflections  and  Reminiscences.     2  v.     London,  1898. 

Blackstone,  Commentaries. 

Blackwood's  ^lagazine. 

Blaine,  James  G. :  Twenty  Years  of  Congress;  from  Lincoln  to  Garfield.     2  v.     Nor- 

wich,  1884. 
Block,  Maurice:  Dictionnaire  General  de  la  Politique. 
Bluntschli:  Le  Droit  International  Codifie. 

Das  moderne  Volkerrecht. 

Boeck,  C.  de:  De  la  Propriete  Privee  Ennemie  sous  Pavilion  Ennemi.     1882. 
Bonfils,  H.:  Manuel  de  Droit  International. 

De  la  competence  des  tribunaux  fran(,-ais  a  l^gard  des  Etrangers,  1865. 

Bonnycastle,  Captain:  On  Spanish  America.     London,  1818. 

Bosanquet,  S.  R.  C,  and  Tangyr,  R.  T.  G. :  The  Burden  of  Neutrality.     Xotes  for 

on-lookers  in  time  of  war.     London,  1904. 
Boutwell's  Report,  French  and  American  Claims  Commission,  Convention  of  Jan.  16, 

1880. 
Bouvier's  Law  Dictionary. 
Bowen,  Herljert  \V. :  Correspondence  and  Cablegrams  Relating  to  the  Venezuelau 

Protocols.     Washington,  1903.     Pamphlet.  • 

Bracton:  De  Legibus  et  Consuetudinibus  Angliae.     Ed.  by  Tvviss.     6  v.     London, 

1878-1883. 
Brazil  and  Bolivia,  Boundary  Settlement:   Treaty  for  the  Exchange  of  Territories 

and  other  Compensations,  signed  at  Petro polls,  Nov.  17, 1903,  together  with  the 

Report  of  Baron  Rio-Branco,  Minister  for  Foreign  Relations  of  Brazil. 
British  and  Foreign  State  Papers. 
British  Colonial  Reports. 

British  Counter  Ca,se  and  Papers,  Geneva  Arbitration.     American  reprint. 
British  Manual  of  Naval  Prize  Law,  1866. 
British  Parliamentary  Papers. 
British  Statistical  Society,  Journals  of. 
British  Statutes. 
Brocher,  Ch.  Antoine:  Nouveau  traite  de  droit  international  prive  au  double  pomt 

de  vue  de  theorie  et  de  la  pratique.     1876. 
Broom's  Legal  Maxims.     2d  ed. 
Brougham  (Henry)  and  Vaux  (Henry):  Historical  Sketches  of  Statesmen  in  the 

Time  of  George  III.,  1760-1820.     3  v.     London,  1856-58. 
Buchanan,  James:  Buchanan's  Administration  on  the  Eve  of  the  Rebellion.     New 

York,  1866. 
Buckingham  Correspondence. 

Buell,  A.  C. :  Paul  Jones;  Founder  of  the  American  Navy. 
Bulletin  Argentin  de  Droit  International  Priv6.  Fond^  et  public  par  Fstanislao  S. 

Zeballos.     Buenos  Aires. 
Bulletin  du  Congr^a  de  la  Paix. 
Bulletin  de  la  Society  de  Legislation  Compar^e. 
Bulloch,  J.  D. :  Secret  Service  of  the  Confederate  States  in  Europe.     2  v.     London, 

1883. 
Bulmerincq,  A. :  Praxis,  Theorie  und  Codification  des  Vijlkerrechta.     Leipzig,  1874. 


XTI  LIST    OF    AUTHORITIES. 

Barke,  E<lniun<l:  Works.     12  v.     Boston,  1SH7. 

Barlaina(jui,  J.  J.:  Priiu-iph's  of  Natural  ami  Politic  \a\\\.     2  v.     Tranp.  by  Nugent. 

Butler,  Gen.  B.  F.:  "Butler's  B«X)k." 

Butler,  Charles  Henry:  The  Treaty-inakinj;  I*o\ver  of  the  I'nited  States.     New  York, 

1902.     2  vols. 
Butler,  C.  M.:  Renuniseenees  of  Mr.  \Veh.>iter  (pamphlet). 
Butler-Johnstone:  IIanin)ook  of  Maritime  Ri<ihts.     London,  l.S7«>. 
Bynkershoek,  Cornelius  van:  De  Foro  Ivegatorum,  tam  in  Cau.-^a  Civiii  quam  Crimi- 

nali.     1721. 

QuaestionuMi  .Juris  Public!.     17.i7. 

Caclwalailer,  John  L. :  Digest  of  the  l*ublishe<l  Opinions  of  the  Attorneys-General, 
and  of  the  leading  Decisions  of  the  Fe<leral  Courts,  with  reference  to  Inter- 
national I^iw.     Revised  e<l.     Waishington,  1.S77. 

Calhoun,  John  C:  Works.     6  v.     New  York,  lSo3-lSor>. 

Callahan,  James  Morton:  The  Neutrality  of  the  American  Lakes  ami  Anglo-American 
Relati<  ms.      Baltimore,  1898. 

T^iplomatic  History  of  the  Southern  Confederacy.     Baltimore,  1901. 

Calvo,  Ch.:  Derecho  Internacional  te«'irico  y  i»ractico  de  F>uropa  y  America.     2  v. 

Paris,  1S6S. 

I>e  Droit  International  theorique  et  pratique,  precede  d'  un  exjx)se  historique 

des  progres  de  la  Science  du  tlroit  des  gens. 

.Maiuiel  de  Droit  International.     Paris,  1884. 


Cam|)l)ell,  l.^jrd:  Autobiograi>hy  of.     2d  ed.     1881. 

Camiing,  George:  Ofhcial  Correspondence. 

Canit^'fxlory  Ftienne:   Du  Droit   International  concernant  les  grands  Cours  d'Eau. 

Paris.  1S()1. 
Carlisle,  H.  K. :  I^etters,  etc.,  of  Abraham  Hay  ward.     2  v.     London.  18S6. 
Cas.«,  I^wis:   Kxam»*n  de  la  l^uestion  aujourd'hui  pendante  entre  le  <  iouvcrnement  des 

Etats  Cnis  et  celui  de  la  Grande  Hretagne,  concernant  le  Droit  de  Visite.     Paris, 

1S42. 

An  F.xaminalion  of  the  Que.«tion.  now  in  Discu.>Jsion,  between  the  American 

and  British  <iovt'rmnents,  concerning  the  Right  of  Search.     Paris,  1S42. 

Cauchy,  E. :  Ia'  Droit  Maritime  International.     2  v.      Paris,  ls<j2. 

Century  Magazine. 

Chalmers,  ( ieorge:  Opinions  of  Eminent  lawyers  on  various  Points  of  English 
Jurisprudence. 

Chand»ers'  Journal. 

Chitty,  Jo.^eph:  I.^w  of  Nations,  relative  to  the  Legal  Effect  of  War  on  the  Com- 
merce of  lielligerent*  and  Neutrals.     Boston,  1812. 

Treaties  on  Pleading  and  Parties  to  Actions. 

Cicero,  M.  T.:  Oin-ra  Onuiia.  Nol)l)e.  Lii>s.,  18.50. 
Clarke,  Sir  E. :  A  Treatise  ujKjn  the  I^iw  of  Extradition. 
Clausewitz,  ( ien.  Carl  von:  Von  Kriege. 

Cla_\ ,  CorresjM>ndence  of.  e<lite<l  }>y  Colton. 

Clercq,  A.  J.  H.  de:   R.-<-uei!  des  fraib'-s  <le  la  France.     10  v.     Pari.«.  1864-1872. 
Clercq  (A.  J.  H.  de)  and  Vallat  ((".  ile):  Guide  Pnuique  des  Consulats.     Paris,  1851. 
Clunet's  Journal  (Journal  du  Droit  International  I'rive  et  de  la  Jurisprudence  Com- 

paree). 
CoV>ljett,  Pitt:  lA'ading  Ca.>ies  and  Opinions  on  International  Law. 
Co<le  de  Conunerce  (of  France). 
Coggeshair.s  History  of  American  Privati-ers. 
Coke,  Sir  Edward:   Institutes  of  the  I^ws  of  England. 
Coleccion  de  los  TratJidos  de  Paz,  et<-.:  Madrid,  1800. 
Colonial  Systems  of  the  World.     Bureau  of  Statistics,  Trea.<ury  Dejtartment,  1898. 


LIST    OF    AUTHORITIES.  XIII 

Coluniliia  Law  Review. 

Comynsi,  Sir  John:  Digest  of  the  Laws  of  England. 

Concha,  Jose  Vicente:  Las  negociaciones  diplomaticas  del  Canal  de  Panama,  cartas 
y  documentos.     Bogota,  1904. 

Conference  Internationale  de  la  Paix.     The  Hague,  1899. 

Congressional  Debates  of  the  United  States. 

Congressional  Globe  of  the  United  States. 

Congressional  Record  of  the  United  States. 

Consular  Instructions  of  the  United  States,  1855. 

Consular  Regulations  of  the  United  States,  1864,  1870,  1881,  1888,  1896. 

Consular  Reports. 

Cooper,  Rear- Admiral  G.  H.,  and  Lieut.  R.  P.  Rodgers,  U.  S.  N. :  Reports  of,  respect- 
ing progress  of  work  on  the  ship  canal  across  the  Isthmus  of  Panama,  with 
plates  and  maps.  Mar.  12,  1884,  S.  Ex.  Doc.  123,  48th  Cong.  1st  sess. 

Correspondence  in  relation  to  the  proposed  interoceanic  canal  between  the  Atlantic 
and  Pacific  oceans,  the  Clayton-Bulwer  Treaty,  and  the  Monroe  Doctrine:  Gov- 
ernment Printing  Office,  1885. 

Correspondence  relative  to  the  fisheries  cjuestion,  1885-1887,  presented  to  the  Canadian 
Parliament  :May  3,  1887. 

Coudert,  Frederic  R.,  jr.:  Practical  Legal  Difficulties  Incident  to  the  Transfer  of 
Sovereignty,  Ijeing  an  address  before  the  Academy  of  Political  Science,  May  27, 
1902. 

Courrier  des  Etats  Unis. 

Coxe:  Judicial  Power  and  Unconstitutional  Legislation. 

Crandall,  S.  B. :  Treaties,  their  Making  and  Enforcement..    New  York,  1904. 

Craven,  Lieut.  T.  A.  M.,  report  of,  of  a  survey  made  of  the  Isthmus  of  Darien,  dated 
Feb.  18,  18.59. 

Creasy,  Edward  S:  First  Platform  of  International  Law.     London,  1876. 

Criminal  Law  ^Magazine. 

Croker,  J.  \V. :  Correspondence  and  Diaries.     3  v.     London,  1874. 

Curtis,  (ieo.  Ticknor:  International  Arbitrations  and  Award  (pamphlet). 

The  Case  of  the  Virghuus,  considered  with  Reference  to  the  Law  of  Self- 
defense  (pamphlet). 

Life  of  James  Buchanan.     2  v. 

Life  oi  Daniel  Webster.     2  v. 


Cussy,  Baron  Ferd.  de:  Dictionnaire  ou  Manuel-Lexique  du  Diplomate  et  du  Consul 
iveipzig,  1846. 

■     Phases  et  Causes  Celebresdu  Droit  Maritime  des  Nations.    2  v.    J^eipzig,  185ti. 

Dalla.s,  G.  M.:  A  series  of  Letters  from  Ixjudon,  written  during  the  Years  1856,  1857, 
1858,  1859,  1860. 

Dalloz,  D. :  Jurisprudence  Generale:  Repertoire  Methodiqueet  Alphabetique  de  Leg- 
islation, de  Doctrine  et  de  Jurisprudence,  en  Matiere  de  Droit  Civil,  Commercial, 
Criminel,  Administratif,  de  Droit  des  Gens  et  de  Droit  Public. 

Dana,  Richard  Henry,  jr.     (See  Wheaton,  Henry.) 

Davis,  Admiral,  Rej)ort  oi,  on  interoceanic  canal  and  railway,  S.  Kx.  Doc.  62,  39th 
Cong.  1st  sess. 

Davis,  Charles  IL:  Life  of  Charles  Henry  Davis,  Rear-Admiral.  Boston  and  New 
York,  1899. 

Davis,  J.  C.  Bancroft:  Les  Tribunaux  de  Prises  des  Etats  Unis,  Ac,  1878. 

Mr.  Fish  and  the  Alabama  Claims. 

Treaty  Notes,  in  United  States  Treaty  Volume,  1776-1887. 

Dauzat,  .\lbert:  Du  Role  des  Chambres  en  matiere  de  Traites  Internationaux.     Paris, 

1899. 
De  Bow's  Review. 


XIV  LIST    OF    AUTHORITIES. 

Decisions  of  tlie  First  Coiiij)trollor  [I'.  S.  Treasury  Department]. 

Delariie  de  Hcauniarcliais,  Maurice:  I^  Doctrine  de  Monroe.     Paris,  1897. 

Derljy,  K.  II.:  Letter  to  the  Hon.  Wni.  H.  Seward,  Secretary  of  State,  as  to  the  rela- 
tions of  the  I'nited  States  with  the  British  Province.s.     Washington,  1867. 

I>e.«cainps,  Ed.:  I^i  Neutmlite  de  la  Beigique.     Bruxelles  et  Paris,  1902. 

Despagnet,  Frantz:  La  Ciuerre  snd-Africaine  au  point  de  vue  du  droit  international. 
Paris,  liHlL'. 

Deut.sche  Kuiidschau.     Jierlin,  lS74-l»Oo. 

Dicey,  .V.  V.:  A  Treati.se  on  the  I>aw  of  Domicil  in  England.     London,  1879. 

Tlie  t'onflict  of  Laws,  with  Notes  of  American  cases,  by  John  Bassett  Moore. 

Loinlon,  l<Si»(). 

Difficulties  between   Mexico  and   (.Juateniala.     Proposed  mediation  of  the   United 

States.     Some  ofticial  documents.     New  York,  1882. 
I  »ii Jomatic  Corrt'spi>n<lence  of  the  American  Revolution.    By  Francis  Wharton.    8  v. 

Washingt.ni,  1S8». 
Diplomatic  Correspondence  of  the  United  States,  17813-1789.    li  v.    Washington,  1837. 
Diplomatic  Correspondence  of  the  United  States,  1861-1869. 
Diplomatic  Fly-Sheets,  March  15,  1887,  containing  report  by  St.  Pancras  for.  aff. 

com.  on  "The  alleged  'Rights  of  Am.  Fishermen  in  Brit.  North-Am.  AVat«rs.'  " 
Di.x,  Morgan:  Memoirs  of  John  A.  Dix.      2  v. 
Dos  Passos,   Benj.  F. :  The  Law  of  Collateral  Inheritance,  Legacy  and  Succession 

Taxes.     New  York,  1890. 
Duer,  John:  Law  and  Practice  of  Marine  Insurance.     2  v.     New  York,  1845-6. 
Duer,  Wm.  Alcxandi'r:  Outlines  of  the  Constitutional  Jurisprudence  of  the  United 

States.     New  York,  1833. 
Duggan,  S.  P.  11.:  The  Eastern  Question.     New  York.     1902. 
Dunning,  Wm.  A.:  Essays  on  the  Civil  War  and  Reconstruction. 
Ducnxj,  Tlu'ophile:  Cours  de  Droit  Administratif.     2  v.     Paris,  1881. 
Dupuis:  Le  Droit  de  la  Guerre  Maritime.     Paris,  1899. 
Edinburgii  Review. 
Egyptian  ( iazette,  Alexandria,  Egyj)t. 

F:ilenborougli,  Lord:  Political  Diary.     2  v.     Ix^ndon,  1881. 

Elliot,  Jonathan:  Del )ate.s  in  Convention  on  the  Adoption  of  the  Federal  Constitu- 
tion.    4  V.     Washington,  1827-30. 
EHiott,  Ch:t<.  B. :  The  L'nited  States  and  the  Northeastern  Fisheries:  A  History  of 

the  Fisliery  (Question.     Minneapolis,  1887. 
Elmer,  Lucius  (^.  C. :  Dige.«t  of  New  Jersey  Laws. 
Emt'rigon,    Baithazanl    >L:    Treati.«e    on   In.surances.     Translated,   with    notes,  by 

.^amuei  Meredith.      London,  W'lO. 
EncyclopMMJia  Britanuica. 
Engclhanlt,    Ivl.:    Du   lit'gi'"*'  Conventionnel   des  Fleuves  Internationaux.     Paris, 

1S79. 

Ilistoiredii  Dniit  Fluvial  Conventionnel.     Paris,  1889. 

Fxhbach,    L.   P.   .\.:   Iiitroijuction   (ienerale   a  I'Etude    du  Droit.     3""'  ed.     Paris, 

18.56. 
Everett,  Edward:  Uratioiis  an<l  Speeclies.     2d  ed.,  4  v.     Boston,  1850-1868. 
Fabre,  Pierre-Paul:  Des  Servitudes  dans  le  Droit  International  Public.     Paris,  1901. 
Fallos  de  la  Suprcma  Corte  de  la  liepublica  Argentina. 
Fauihille,  Paul:  Du  Blocus  Maritime.     Paris,  1882. 

bi  Diplomatic  Francaise  et  la  Ligue  des  Neutres  de  1780.     Paris,  1893. 

Felice.  F.  B.  de:  Lifyons  <le  Droit  de  la  Nature  et  des  (Jens.     2  v.     Paris,  18.30. 
Ferguson,  Jan  Helenus:  Manual  of  International  Law.     2  v.     London,  1884. 
Field,  David  Dudley:  Outlines  of  an  International  Code.     2d.  ed.     New  York,  1876. 


LIST    OF    AUTHORITIES.  XV 

Fiore,  Pasquale:  Noiiveau  Droit  International  Public.  2^  ed.  Traduit  par  Chas. 
Antoine.  3  v.  Parif,  1885-6.  (Bibliotheque  Internationale  et  Diplomatique, 
vols.  11-13.) 

Traite  de  Droit  Penal  International  et  de  1' Extradition.     Traduit  par  Chas. 

Antoine.     2  v.     Paris,  1880. 

Fitzherbert,  Sir  Anthony:  La  Graunde  Abridgement.  Folio.  London,  1577. 
Fitzmaurice,  Lord  E.:  Life  of  the  Earl  of  Shelburne.  3  v.  London,  1875-6. 
Fla.«.«an,  M.  de:  Histoire  Generale  et  Raison^e  de  la  Diplomatic  Franraise.     7  v.    Paris, 

1811. 
Foelix,  J.J.  G.:  Traits  du  Droit  International  Prive.     3d  ed.,  1856;  4th  ed.,  revue  et 

augmentee  par  Charles  Demangeat,  2  v.,  Paris,  1866. 
FoUett,  W.  AV.:  Reports  on  the  Investigation  and  Survey  for  an  International  Dam 

and  Reservoir  on  the  Rio  Grande  del  Norte  to  Preserve  the  Boundary  between 

the  United  States  and  Mexico,  etc. 
Ford,  Paul  L.     See  Jefferson. 
Ford,  AV.  C. :  John  Quincy  Adams  and  the  IVIonroe  Doctrine,  in  7  Am.  Hist.  Rev.,  680. 

See  Washington. 

Foreign  Relations  of  the  Ignited  States.     1870-1904. 

Forsyth,  AVilliam:  Cases  and  Opinions  on  Constitutional  Law.     London,  1869. 

Foster,  John  W.:  A  Century  of  American  Diplomacy  1776-1876.     Boston,  1901. 

American  Diplomacy  in  the  Orient.     Boston  and  New  York,  1903. 

Franklin,  Benjamin:  Complete  Works,  by  John  Bigelow.    10  v.     New  York,  1887-8. 

The  Works  of,  with  Notes  and  a  Life  of  the  Author.  By  Jared  Sparks.  Bos- 
ton, 1836-40. 

Franklin  MSS.,  Dept.  of  State. 

Franklin  MSS.,  Library  of  Congress. 

Fra.ser,  Patrick:  Treatise  on  Husband  and  Wife,  according  to  the  Law  of  Scotland. 

2d  cd.     Edinburgh,  1876-8. 
Funck-Brentano  (Th.)  et  Sorel  (All)ert):  Precis  du  Droit  des  Gens.     Paris,  1877. 
Fur  Seal  Arbitration,  American.     Reprint. 
Gaceta  de  INIadrid. 

Gaignerot,  La  question  d'Egypte.     Paris,  1901. 
Gains,  Institutes  of  Roman  Law. 

Gallatin,  Albert:  The  Writings  of.     Edited  by  Henry  Adams.     3  v.     Phila.,  1879. 
Garden,  Comte  de  Guilhiumc:  Traite  complet  de  diplomatie,  on  Theorie  G^n^rale  des 

Relations  Exterieures  des  Puissances  de  I'Europe.     Paris,  1833. 

Histoire  (Tcncrale  des  Traites  de  Paix,  etc.,  depuis  la  Pai.x  de  Westphalie. 

Ouvrage  comprenant  les  Travaux  de  Koch,  Schoell,  etc.     14  v.     Paris,  1849-51. 

Gardner,  Daniel:  Institutes  of  International  Law,  Pul)lic  and  Private,  as  settled  by 

the  Supreme  Court  of  the  United  States,  and  by  our  Republic,  with  references  to 

judicial  decisions.     New  York,  I860. 
Gaulot:  La  Verite  sur  I'expedition  du  Mexique,  4th  ed. 
Gazette  des  Tribunaux. 

General  Collection  of  Treaties  [London,  1710-1733]. 
Geneva  Arbitration,  1871.     Case  of  the  United  States;  case  of  Great  Britain;  British 

counter  case,  etc. 
Gentili,  Alberico:  De  Jure  Belli  Libri  Tres.     P:didit  T.  E.  Holland.     4to.     Oxonii, 

1877. 
Gentleman's  Magazine. 
Geographical  Journal. 
Gessner,  L. :  Reform  de.s  Kriegeseerechts.     Berlin,  1875. 

Le  Droit  des  Neutres  sur  Mer.     Berlin,  1876. 

Kriegfiihrende  und  Neutrale  Miichte.     Berlin,  1877. 


XVI  LIST    OF    AUTHORITIES. 

Gibbs,  (ieorge:   Meinoiry  of  the  Administrations  of  Washington  and  John  Adams. 

2  V.     New  York,  184(5. 
Glass,  Henry:  ]Shirine  International  Law.     Annapolis,  1885. 
(Jlenn,  IMwin  F. :  I Iandl)nok  of  International  Law.    .St.  Paul,  185)5. 
(ionjre,  William  M.:  The  Fiscal  History  of  Texa.s.     Philadelphia,  1852. 
Gould,  John  M,:  Treatise  on  the  Law  of  Waters,  including  Riparian  Righti!,  and 

Public  and  Private  Rights,  in  Waters,  Tidal  and  Inland.     8d  ed.     Chicago,  1900. 
(ireeideaf,  Simon:  Treatise  on  the  I^w  of  Evidence. 
(Jreville,  Charles  C.   F. :  Memoirs  and  Diary.     1st  series,  -Ith  ed.,  1874.     2d  series, 

1884. 
Grittis,  William  Elliott:  Townsend  Harris,  F'irst  American  Envoy  in  Japan.     Bfiston, 

18{»(). 
Grotius,  Hugo:  De  Jure  Belli  ac  Pacis. 

De  Mari  Libero. 

Guiteau,  Charles  J.:   Trial  of,  for  Murder.     :i\.     Washington,  1882. 

Guizot,  F.  P.  G.:  An  F-ndjassy  to  the  Court  of  St.  James,  in  1840.     London,  1862. 

Gurwood.    See  Wellington. 

Gussief,  A.  N.:  Laws  in  relation  to  Jews.     Flxtracts  from  the  Code  of  the  Russian 

Empire  dealing  with  Jews.    1889. 
Hale,  P^dward  Everett:  Franklin  in  France.     2  v.     Boston,  1886-88. 
Hale,  Sir  Matthew:  De  Jure  Claris  et  Brachiorum  ejusdem.     London,  1875  [.\pj)en- 

dix  to  Hall  on  the  Sea  Shore]. 
Hale,  Robert  S. :  Report  of,  as  Agent  and  Counsel  of  the  Unite<l  States  before  the 

Commission  of  Claims  under  Art.  XII  of  the  Treaty  of  May  8,  1871.       Washing- 
ton, 1874. 
Halifax  Commission,  Documents  and  Proceedings  of. 
Hall,  William  Edward:  A  Treatise  on  International  Law. 
■ — —     Foreign   Powers  and  Jurisdiction  of  the  Briti.sh  (,'rown.     4th  ed.     Oxford, 

1895. 
■     Rights  and  Duties  of  Neutrals.     London,  1874. 


Hallam,  Henry:  View  of  the  State  of  I Airope  during  the  Middle  Ages.    Sth  ed.     2  v. 

1841. 
Halleck,  Gen.  Henry  Wager:  International  Law  or  Rules  Regulating  the  Intercourse 

of  States  in  Peace  and  War.     New  York,  1861.     :^rd  ed.,  by  Baker,   London, 

189.3. 
Hamilton,  Alexander:   Works  of.      Edited  by  H.  C.  Lo<lge.     9  v.     1885-6. 
Hamilton,  James  A.:  Remini.«cences,  New  York,  1869. 

Hamilton,  S.  M.:  Writings  of  James  Monroe.     7  v.     New  York,  1898-190.S. 
Hansard's  Parliamentary  Debates. 
Harcourt,  Sir  W.  V.:  Letters  of  Historicus  on  some  (Questions  of  International  Law; 

reprinted  from  The  Times,  with  considerable  additions.     London  and  Cambridge, 

1863. 

Letter  of,  in  London  Times,  March  22,  1865. 

Hargrave,  Francis:  Collectanea  Juridica,  consisting  of  Tracts  relative  to  the  Law  and 
Constitution  of  England.     (Anon.)     2  v.     London,  1791-2. 

Harris,  Thomas  Le  (jranil:  The  Trent  Affair.     Indianapolis,  1896. 

Hart,  Altx-rt  Bushnell:  Foundations  of  American  Foreign  Policy.     New  York,  1901. 

Hartley,  Oliver  C. :  Digest  of  the  Laws  of  Texas.     Phila.,  18.50. 

Harvard  Law  Review.  • 

Hautefeuille,  Laurent  B. :  (^lehjues  (.^lestions  de  Droit  International  Maritime  :\ 
propos  de  la  (iuerre  d'Amerique. 

Des  Droits  et  des  Devoirs  des  Nations  Neutresen  temps  de  (iuerre  Maritime. 

5  V. 

Questions  de  Droit  Maritime  Internati(jnal. 

Histoire  des  Origines,  des  Progres  et  des  Variations  du  Droit  Maritime  In- 
ternational. 


LIST    OF    AUTHORITIES.  XVII 

Hawks,  F.  L. :  Narrative  of  the  Expedition  of  an  American  Scjuadron  to  the  China 
Seas  and  Japan  in  1852, 1853,  and  1854,  under  the  command  of  Commodore  W.  C. 
Perry,  U.  S.  N.,  com.  from   [his]  notes  and  journals.     2  v.     Washington,  1856. 

Haytian  Question,  The:  By  Verax.     New  York,  1891. 

Heffter,  August  Wilhehn:  Droit  International  Public  de  I'Europe.  Bergson's  ed., 
by  (^effcken,  1883. 

Das  p]uroiiaische  Yolkerrecht  der  Gegenwart.      8th  ed.,  by  (Jeffcken,  1888. 

Criminalrecht. 

Hclie,  Faustin  A. :  Pratique  criminelle  des  cours  et  tribunaux;  resume  de  la  jurispru- 
dence sur  les  codes  d'instruction  criminelle  et  penale.     Paris,  1877. 

Henderson,  John  B.,  jr.:  American  Diplomatic  Questions.     New  York,  1901. 

Hennebicq,  Leon:  Principes  du  Droit  Maritime  compare.     Brussels,  1904. 

Hennen,  William  D.:  Digest  of  the  Reported  Decisions  of  the  Courts  of  Louisiana. 
2  V.     Cambridge,  1861. 

Henry,  Morton  P. :  Admiralty  Jurisdiction  and  Procedure. 

Hermann,  Binger:  The  Louisiana  Purchase. 

Hertslet,  Sir  Edward:  Map  of  Europe  ]:)y  Treaty,  Showing  the  Territorial  Changes 
Since  the  General  Peace  of  1814.     4  v.     London. 

Hildreth,  Richard:  History  of  the  United  Stales  of  America.  Revised  edition.  6  v. 
New  York,  1856. 

Hinckley,  F.  E. :  American  Consular  Jurisdiction  in  the  Orient.     1906. 

Hishida,  SeijiG.:  The  International  Position  of  Japan  as  a  Great  Power.  New 
York,  1905. 

Holland,  Thomas  Erskine:  The  Laws  and  Customs  of  War  on  Land,  as  defined  by 
The  Hague  Convention  of  1899.     1904. 

British  Admiralty  Manual  of  the  Law  of  Prize.     1888. 

Neutral  Duties  in  Time  of  War.     Proceedings  of  the  British  .Vcademy. 

Studies  in  International  Law.     Oxford,  1898. 

Holls,  Frederick  \V.:  The  Peace  Conference  at  The  Hague.     New  York,  1900. 

Iloltzendorff,  F.  von:  P^ncyklopildie  der  Rechtswissenschaft. 

Rechtslexicon.     3  vols,  in  4.     Leipzig,  1880-1. 

Handbuch  des  Volkerrechts.     4  v.     Berlin,  1885-1889. 

Hortmann,  Gen.  J.  von:  Militiirische  Nothwendigkeit  und  HumanitJit. 

Hosmer,  J.  K.:  History  of  the  J^ouisiana  Purchase.     New  York,  1902. 

House  [of  Representatives  of  the  United  States]  Executive  Documents 

House  [of  Representatives  of  the  United  States]  Reports. 

Howard:  The  Louisiana  Purchase.     Chicago,  1902. 

Howard's  Report  of  the  American  and  British  Claims  Commission. 

Howell,  Thomas  B.  and  Thomas  J.:  Complete  Collection  of  State  Trials,  and  Pro- 
ceedings for  High  Treason  and  other  crimes  and  misdemeanors.  33  v.  London, 
1809-26.     [Vols.  1-10  are  Cobbett's  Complete  Collection.] 

Huber,  Max:  Die  Staaten-Succession.     Leipzig,  1898. 

Hubner,  Martin  von:  De  la  Saisie  des  Batiments  neutres.     2  v.  in  1.     Londres,  1778. 

Hughes,  Sarah  Forbes:  Letters  and  Recollections  of  John  Murray  Forbes.  2  v. 
Boston,  1899. 

Hunt,  Arthur  J.:  Law  Relating  to  Boundaries  and  Fences,  and  to  the  Rights  of 
Property  on  the  Sea  Shore,  in  the  Beds  of  Public  Rivers,  etc.  3d  ed.  By  A. 
Brown.     London,  1884. 

Hunt,  Chas.  H.:  Life  of  Edward  Livingston.     New  York,  1864. 

Hunt,  Gaillard;  The  American  Passport. 

Hunt's  Merchant's  Magazine. 

Hu.se,  Caleb:  The  Supplies  for  the  Confederate  Army.  How  they  were  obtained  in 
Europe  and  how  paid  for.     1904. 

H.  Doc.  551 n 


XVITI  MST    OF    ATTHORITIES. 

Ihitfliiutioii,  r.  ().:  Tho  Piarv  and  Lottern  of  Thomas  Hutcliinson.     2  v.     Boston, 

ISS4-lSS(i. 
Iiiil)art-l.at(>nr.  .lojit'ph:   I-a  Mer  Tcrritorialo.     Paris,  1889. 
ln(lei)enilfiit.  The. 
Ingersoll,  Charles  Jaifd:  Historical  Sketch  of  tho  Second  War  between  the  United 

States  and  (ireat  Britain.     4  v.     rhiladelpliia,  1845,  1852. 
Instrnctions  to   Tnited  States   Blockading  Vessels  and  Crnisers.     (Jeneral  Orders. 

1898. 
Instrnctions  to  the  Diplomatic  Oflicers  of  the  United  States,  1897. 
Instructions  for  the  Government  of  Armies  of  the  United  States  in  the  Field.     I860. 

Francis  Lieber. 
International  .\merican  Conference,  AVitshington,  1889-1890.     Reports  of  ("ommitteea 

and  Discussions.     4  vols.     Washington,  1890. 
International  Law  Association,  Rei)orts  of. 
International  I-aw  Situations,  Naval  War  College,  1901. 
International  Year  Book. 

Isham:  The  Fishery  Question.     New  York,  1887. 
Jackson,  Sir  F.  J.:  The  Diaries  and  Letters  of.     2  v.     London,  187?.     Second  series, 

under  title  of  the  Bath  Archives,  London,  187.3. 
Jacobs,  G.  31. :  Relics  of  the  Confederacy  in  Wa.<hington.    Louisville  Courier-Journal, 

May  :50,  1900. 
Jacobsen,  F.  J.:  ].,aws  of  the  Sea,  with  reference  to  ^Maritime  Conunerce,  during 

Peace  and  War.     From  the  (ierman,  l)y  W.m.  Frick.     Baltimore,  1818. 
Jay,  William:  Review  of  the  Causes  and  Consequences  of  the  Mexican  War.     3d  ed. 

Boston,  1849. 

Life  of  John  Jay.     New  York,  1833. 

Jefferson,  Thomas:  Memoirs,  correspondence,  and  mi.scellanies.     Ed.  by  T.  J.  Ran- 
doli)h.     4  vols.     Charlottesville,  1829. 

Writings  of.     lul.  by  II.  A.  Washington.     Washington,  185.3-54. 

Writings  of.     ImI.  by  Paul  L.  Ford.     10  v.     New  York,  1892-1899. 

Manual  of  Parliamentary  Practice. 

Journal  dv  (ieneve. 

Journal  du  Droit  International  Prive  et  de  la  Jurisprudence  comparee.     Publie  par. 

M.  Ed.  Clunet.     Paris. 
Journal  of  British  Statistical  Society. 
Journal  of  Jurisprudence. 
Journals  oi  New  York  ].,egislature. 
Journal  of  the  Royal  United  Service  Institute. 
Juridical  Review. 
Juridical  Society  Papers. 
Jurist,  The. 
Justinian's  In.<titutes. 
Kaltenlxjrn,   von   Stiichau,    Karl   von:    (irund.siltze   des   pnikti.«chen    Kuropiii.^chen 

.Seerecht.-^.     2  v.      lierlin,  1851. 
Kas.son,  John   A.:   Informatitm    respecting  Recii)rocity  and  the   E.\i.stiiig  Treaties. 

Washington,  (iovermuent  J'rinting  Olhce,  1901. 
Keasbey.   Lindley  Miller:  The   Nicaragua  Canal  and  the  ^Shmroe  Doctrine.     New 

York  and  London,  ]89<). 
Kellen,  W.  V. :  Ih'ury  Wheaton:  An  Appreciation,  l>eing  an  address  delivered  before 

the  alumni  of  Brown  University,  June  17,  1902,  on  the  hnudredth  anniversary  of 

Wheaton's  graduation.     P>oston,  1902. 
Kent.  James:  Coir.mentaries  on  American  I>aw.     4  v. 

Commentary  on   Internation;\l   I^w.     2d  eti.     By  J.  T.  Aljdy.     Cambridge 

and  London,  1878. 


LIST    OF    AUTHORITIES.  XIX 

Kleen,  Richard:  Lois  et  Usages  <le  la  Xeutralite  d'apres  le  Droit  International,  C'on- 
ventionnel  et  Coutuniier  des  Etats  civilises.     2  v.     Paris,  1898-1900. 

De  la  Contrebaiide  de  (jruerre.     Paris,  1893. 

Kliiber,  Johann  Liidwig:  Droit  des  Gens  Moderne  de  1' Europe.  2  v.  Paris,  1831. 
Nouvelle  ed.,  par  A.  Olt,  Paris,  1861.     2«  ed.,  par  A.  Olt.     Paris,  1874. 

Laband,  Paul:  Das  Staat.srecht  des  Deutschen  Reiches.  3(1  ed.  2  v.  Freiburg, 
1895. 

Lachau,  Charles:  Project  de  Traite  entre  la  France  et  PAIleinagne  sur  la  Coiuj^etence 
judiciare,  sur  I'autorite  et  I'execution  des  decisions  judiciaries,  des  sentences 
arbitrales  et  des  actes  authentiques.  Paris,  1902.  [Extrait  du  Bulletin  de  la 
Society  de  Legislation  C'oinparee,  xxi,  328.] 

Lapradelle,  La  Xouvelle  These  du  Refus  de  Charbon  aux  Belligerants  dans  les  Fmx 
Neutres.     Paris,  1904. 

I^tane:  The  Diplomatic  Relations  of  the  United  States  and  Spanish  America.  Balti- 
more, 1900. 

I^tour:  See  Imbart-Latour. 

Law  Magazine;  or  Quarterly  Review  of  Jurisprudence.     London. 

Lawrence,  T.  J.:  P^ssays  on  some  Disputed  Questions  in  Modern  International  Law. 
2d  ed.     1885. 

Principles  of  International  I^w.     3d  ed.     Boston,  1900. 

Lawrence,  William.  Decisions  of  First  Comptroller,  U.  S.  Treasury  Department. 
2d  ed.     6  v.     Washington,  1880-85. 

The  Law  of  Claims  against  Governments,  including  the  mode  of  adjusting 

them  and  the  procedure  adopte<l  in  their  investigation.     Washington,  1875. 

Lawrence,  William  Beach:  Visitation  and  Search.     Boston,  1858. 

See  Wheaton,  Henry. 

Commentaire  sur  les  elements  du  droit  international  et  sur  I'histoire  des 

progres  du  droit  des  gens,  de  Henry  Wheaton.     Precede  d'une   notice  sur  la 
carriere  iliplomatique  de  M.  Wheaton.     4  v.     Leipzig,  1868-80. 

Lebeau:  Nouveau  Code  de  Prises,  on  recueil  des  edits,  declarations,  lettres  patentes, 
arrets,  ordonnances,  etc.     4  v.     Paris,  1799-1801. 

I^braud,  Elie:  La  Guerre  Hispano-Americaine  et  le  Droit  des  Gens.     Paris,  1904. 

Lecky,  W.  E.  H.:  History  of  England  in  the  Eighteenth  Century.  8  v.  London, 
1878-1890. 

Lee,  R.  IL:  Life  of  Arthur  Lee,  with  his  Political  and  Literary  Correspondence. 
2  V.     London,  1829. 

Lee-Warner,  W.:  The  Protected  Princes  of  India. 

Levi,  Leone:  International  Law;  with  Materials  for  a  Code  of  International  Law. 
New  York,  1888. 

I>evy,  Pablo  (Paul):  Notas  Geograficas  y  Economicas,  sobre  La  Republica  de  Nicara- 
gua.    Paris,  1873. 

Lewis,  Sir  George  Cornewall:  Essays  on  the  Administrations  of  Great,  Britain  from 
1783  to  1830.     Ed.  by  Sir  Edmund  Head.     London,  1864. 

On  Foreign  Jurisdiction  and  the  Extradition  of  Criminals.     London,  1859. 

Ixnvis,  William:  Das  Deutsche  Seerecht,  ein  Kommentar  zum  V.  Buch  des  Allgemei- 

nen  Deutschen  Handelsgesetzbuch.     2  v.     Leipzig,  1883-84. 
Liszt,  F.  von:  Das  Volkerrecht  systematisch  dargestellt.     2d  ed.     1902. 
Littlefield,  Charles  E.:  The  Insular  Cases.     Am.  Bar  Assoc,  Aug.  21,  1902. 
Littell's  Living  Age. 
Lloyd,  Thomas:  Trials  of  Williani  S.  Smith  and  Samuel  G.  Ogden,  in  July,  1806. 

New  York,  1807. 
Lodge,  Henry  Cabot:  The  Works  of  Alexander  Hamilton.     ( Federal  edition. )     12  v. 

New  York,  1904. 

Life  of  Alexander  Hamilton.     Boston,  1882. 


XX  LIST    OF    AUTHORITIES. 

Ix)ii(loii  Diplomatic  Krvii'W. 

LoikIoii  ( Jazt'tU'. 

London  Qnartorly  Ki'\  ii-w. 

I^mdon  Saturday  Keview. 

London  Spectator. 

I^ondon  StandanL 

I>ondon  Tinu's,  daily. 

London  Tiini'.«,  weekly. 

I^)rinier,  James:  The  In.stitutes  of  the  Law  of  Nations.  2  v.  Kdintmrirh  and  Um- 
don,  1S,S;]-1884. 

Ixjuisville  Courier-Journal. 

Luce,  Rear-Admiral  S.  1?.:  C'omniotlore  Biddle's  Visit  to  Japan.  V.  S.  Naval  Insti- 
tute, vol.  31,  no.  ;5,  p.  555. 

Lueder,  C. :  I^i  Convention  de  Geneve  au  jK)int  de  vue  liistori(|ue,  iriti<iue  et  dog- 
niati(]ue.     Krlan<ren,  1876. 

Lull  and  Collins.  P^xpeditionof  1875,  rejujrtof,  with  maps.  S.  Ex.  Doc.  75,  45  Cong. 
3  sess. 

Lnshington,  (ioilfrey:  ^Manual  of  Naval  Law  Prize.     London,  18t>(). 

Lyman,  Theodore:  Diplomacy  of  the  United  States.     2d  eil.     1828. 

McCulloch's  Commercial  Dictionary.     London,  1882. 

Mackintosh,  Sir  James:  Miscellaneous  Works.     Ed.,  1851. 

Discourse  on  the  Study  of  the  Law  of  Nature  and  Nations.     2d  ed.      l^ondon, 

1828. 

Maclay,  William:  Sketches  of  Debates  in  the  Eirst  Senate  of  tlie  I'nited  Stiite.*,  178!t- 

18iM.      Harrislmrg,  1880. 
McLaughlin,  .\ndrewC. :  I^tiwis  Ca.ss.     American  Statesmen  Series.      Boston,  185)1, 

1899. 
McLeod,    Alexander:    Trial    of,    for   the    Murder   of   Amos  Durfee.     Reported    by 

W.  T.  C.  (iould,  New  York,  1841. 
Macmillan's  Magazine. 

^h•I•he^son's  Hi.story  of  t^ie  Relnjllion.      Wiishingtoii,  18()4. 
Madison  MSS.,  Library  of  Congress. 
Madison,  James:  Letters  ami  Other  Writings  of.     I'hiiadeliihia,  ]8()5. 

[Same.]  4  v.     New  York,  1884. 

Magazine  of  American  History. 

Magoon,  Charli's  E.:  Reports  of,  on  the  Law  of  Civil  (Jovernment  under  ^Military 
Occupation.     Wa,<hington,  1902. 

Mahan,  .\lbert  Thayer:  Sea  Powerand  its  Relations  to  the  Warof  1812.  2  v.  15ost<jn, 
1905. 

Mahoii,  Lord:  History  of  England  from  the  Peace  of  Utrecht  to  the  Peace  of  Ver- 
sailles, 1713-1783.     3d  ed.,  7  v.;  !5oston,  18.53.     4th  e<l.     London,  1853. 

Maine,  Sir  Henry:  Ancient  Law;  its  connection  with  early  history  of  society,  and 
its  relation  to  modern  ideas. 

International  Law.     New  York,  1888.     2d  ed.,  1894. 

Malmesbury,  Lord  (James  Howard   Harris):  Memoirs  of  an  Ex-Minister:  an  .\uto- 

l)iography.     2  v.      London,  1884. 
Manning.  William  Oke:  Connnentaries  on  the  Law  of  Nations.     2d  ed.  by  Sheldon 

.\inos.     London,  1875. 
Mamiscript  I)e.>^patches  to  Consuls  of  the  Uniteil  States:  Department  of  State. 
-Manuscript  Despatches  from  Unite*!  States  Ministers:  Department  of  State. 
Manuscript  iVimestic  Ix'tters:  Department  of  State. 

Manuscript  Instructions  to  Consuls  of  the  United  States:   Deiiartment  of  State. 
Manuscript  Instructions  to  United  States  Ministers:  Department  of  State. 
Manuscript  Letters  from  United  States  Consuls:  Department  of  State. 


LIST    OF    AUTHORITIES.  XXI 

Manuscript  Miscellaneous  Letters:  Department  of  State. 

Manuscript  Notes  to  and  from  Foreign  Legations  in  Washington:    Department  of 

State. 
Manuscript  Proceedings  of  the  Culjan  Evacuation  Connnission,  1898:  Department  of 

State. 
Manuscript  Report  Books:  Department  of  State. 
Manuscripts  of  the  Navy  Department. 
Manuscripts  of  the  Treasury  Department. 
Marine-Hospital  Service:  Annual  Reports  of. 

Maritime  (Quarantine  against  Yellow  Fever;  reprint  from  Yellow  Fever,  its 

Nature,  Diagnosis,  etc.,  1898. 

Marquardsen,  Ileinrich:  Der  Trent-Fall,  1862. 

Marshall,  Samuel:  Treatise  on   the  Law  of  Insurance,  Marine,  Life,  and    Fire.     2d 
Am.  ed.     By  J.  W.  Condy.     2  v.     Philadelphia,  1810. 

Treatise  on  the  Law  of  Marine  Insurance,  Bottomy,  and  Respondentia.     5th 

ed.     By  Wm.  Shee.     London,  1865. 

Martens,  Baron  Charles  de:  flannel  Diplomaticjue,  ou  Precis  des  droits  et  des  fonctions 
des  agents  ili])lomati(iues.     Paris,  1822. 

Le  (ruide  Diplomaticjue:  Precis  des  droits  et  des  fonctions  des  agents  diplo- 

matiques  et  consulvaires.     #"'*^  ed.   2  v.     Paris  et  Leipzig,   1851.     5*^  ed.     Par 
F.  H.  Geffcken.     3  v.     Leipzig,  1866. 

Causes  Cclebres  ilu  Droit  des  Gens.     2*  ed.     5  v.     Leipzig,  1858-1861. 


Martens  (Baron  Charles  de)  et  Cussy:  Recueil   manuel  diplomatique  et  pratique  de 

traites  et  autres  actes  diplomatiques,  etc.     I^ipzig,  1846. 
Martens,  F.  de:  Recueil  des  Traites  et  Conventions,  conclus  par  La  Russie  avec  les 

Puissances  et  range  res. 

Traite  de  Drf>it  Internatifinal.     Trad,  du  Rus.se  par  A.   D'-o.     3  v.     Paris, 

1883-1887. 

Martens,  (J.  F.  de:  Summary  of  the  Law  of  Nations,  Founde<l  on  the  Treaties  and 
Customs  of  the  Modern  Nations  of  Europe.  Translated  from  the  French  Ity  Wm. 
Cobl:)ett.     Pliiladelphia,  1795. 

Pn'cis  <lu  Droit  des  (lens  Moderne  de  I'Europe;  avec  ties   notes   de  M.  S. 

Pinheiro-Fereira.     Paris,  1831.     2  v. 

[The  same]:  Precedee  d'une  introduction.     Par  Ch.  Verge.      2^°"' ed.     2  v. 

Paris,  1864. 

Recueil  des  principau.x  traites  d'alliance,  de  paix,  de  treve,  de  neutralite,  de 

commerce,  de  limites,  d'echange,  etc.,  1761-1801.     7  v.     Gottingen,   1791-1801. 

Supplement  au  recueil  (1701-1808).     4  v.     Gottingen,  1802-1808. 

Recueil   des   principaux   traites.      (1761-1808)    2'""   ed.      8   v.      Gottingen, 

1817-35. 

Nouveaux  Supplements  au  Recueil  de  Traites  et  d'autres  .\ctes  remarqual)les, 

etc.      (1761-1839).     3  v.     Gottingen,  18.39-42. 

Nouveau  Recueil  de  Traites  d' Alliance,  etc.      (1808-39)  16  v.  in  20.     ( iot- 

tingen,  1817-42. 

Nouveau  Recueil  General  de  Traites,  Conventions  et  autres  Actes  remarqua- 

bles,  etc.     (1840-1875.)     20  v.  in  22.     Gottingen,  1843-75. 

Nouveau  Recueil  General  de  Traites  et  autres  Actes  relatifs  aux  Rapports  de 


droit  international.     Deuxieme  Serie,  Vol.  I.   1876,  continued  up  to  date.     Pres 
ent  editor,  F.  Stf)erk. 

Martin,  B.  L.  IL:  Histoire  de  France.     4"  ed.,  16  v.     Paris,  1855-1861. 

Martin,  John  S. :  General  Index  of  the  Published  Volumes  of  the  Diplomatic  Cor- 
respondence and  Foreign  Relations  of  the  United  States  (1861-1899).  Wash- 
ington, 1902. 

Martinez  Alcubilla,  Marcel<j:  Diccionario  de  la  Administracion  Espanola. 


XXTI  LIST    OF    AUTHORITIES. 

Mayst',  (Jabriel:  Lf  droit  commercial  dans  sen  rapports  avec  le  droit  des  gens  et  le 
droit  civil,     .r  ed.,  4  v.     Paris,  1874. 

Maurice,  J.  F. :  Hostilities  without  Declaration  of  War  ( 17(X>-1870).     J.,<jndon,  188:5. 

Mayers,  William  F. :  Treaties  between  the  Empire  of  China  and  Foreign  Powers, 
together  with  Regulations  for  Foreign  Trade.     Shanghai,  1877. 

Meigs,  W.  M.:  T.ife  of  Charkvs  Jared  IngersoU.     Philadelphia,  1897. 

Meir,  Ernest:  Uber  den  Ahschluss  von  Staatsvertriigen.     Leipzig,  1874. 

Merlin,  Comte  Philii)j)e  Antoine  :  RejH'rtoire  Universel  et  Raisonne  de  Jurispru- 
dence.    M  V.  in  18.     Brussels,  1825-1828. 

Meyer,  Pierre  :  De  I'lnterdiction  du  commerce  entre  les  belligerants.     i*aris,  1902. 

Michigan  Law  Review. 

Miehler,  Lieut.:  Report  of,  on  Surveys  for  an  Interoceanic  ("anal,  S.  Ex.  Doc.  9,  .36 
Cong.,  2se.ss.,  2  i)ts. 

Michon,  Louis:  Les  Traites  Internationaux  devant  Les  Chambres.     Paris,  1901. 

Minor,  Raleigh  C:  Conflict  of  Laws,  or  private  international  law.     Bo.ston,  1901. 

Mitteilungen  der  Internationalen  Vereinigung  fiir  vergleichende  Rechtwissenschaft 
und  Volkswirtschaftslehre. 

MoUoy,  Charles:  De  Jure  Maritimo  et  Navali.     Ed.  1701. 

Same.     9th  ed.     London,  1769. 

Moniteur,  Le  (Paris). 

^loniteur,  I>e  (Port  an  IMnce). 

Monroe  MSS.,  Department  of  State. 

Monroe  MSS.,  Library  of  Congress. 

Montesquieu,  Charles  de,  Baron:  The  Spirit  of  J^aws.  Translated  from  the  French. 
By  Thomas  Nugent.  7tli  ed.,  2  v.,  P'dinburgh,  1778;  New.  ed.,  2  v.,  Cin- 
cinnati, 1878. 

Montiel  y  Duarte,  Isidro  Antonio:  Derecho  Publico  Mexicano.     4  v.     Mexico,  1871. 

Moore,  John  Bas.«ett:  The  Effect  of  War  on  I'ublic  Del)tsandon  Treaties. — TheCa.se 
of  the  Si)anish  Indemnity.     Cohnnbia  Law  Review,  April,  1901. 

Rej)ort  on  Extraterritorial  Crime  and  the  Cutting  ca«e.     Washington,  1887. 

Report  on  Extradition  with  Returns  of  All  Ca-ses  from  Aug.,  1842,  to  Jan., 

1890.     AVa>^hington,  1890. 

A  Treatise  on  ]']xtradition  and  Interstate  Rendition.     2  v.     Boston,  1891. 

Case  of  the  Salvadorean  Refugees,  in  29  Am.  Law.  Rev.   (Jan. -Feb.,  1895),  1. 

American  Notes  to  Dicey 's  Conflict  of  Laws.     London,  1896. 

History  and  Digest  of  the  International  .\rbitrations  to  which  the  I'nited 

States  has  l)een  a  i)arty,  etc.     6  v.     Washington,  1898. 

Papers  on  International  Law,  in  I'rogress.     (July,  1900). 

A  IIundre«l  Years  of  American  Diplomacy.     Am.  Bar  Assn.,  1900.    Reprinted 

in  pamj)hlet  form. 

The  Interoceanic  Canal  and  the  llay-I'auni-efote  Treaty.    Washington,  1900. 

John  Marshall,  in  Pol.  Sci.  (^larterly  (Sept.,  1901),  XVI.     .m''..     Reprint^'d 

in  pamphlet  form. 

The  Application  of  the  Principle  of  International  Arl)itration  on  the  Ameri- 
can Continent.  In  Annals  of  .\m.  .\cad.  of  i'ol.  it  Soc.  Sci.  July,  190.S.  Re- 
printed in  pamphlet  form. 

American  Diplomacy,  Its  Spirit  and  Achievements.     New  York,  1905. 


Moreuil,  L.  J.  A.  de:  Maiuiel   des  Agent«  Consnlaires  Francais  et  Etrangers.      Ed. 

augment/-e.     Paris,  18.58. 
Morse,  John  T.,  jr.:  John   (^uincy   Adams.     American  Statesmen  Series.     Boston, 

1887. 
Monroe,  James  .\.:  View  of  the  Conduct  of  the  Executive,  in  the  Foreign  Affairs  of 

the  Tnited  States,  connected  with  the  Mission  t<^)  the  French  Rejjublic,  during 

the  years  1794,  5,  &  6.     Philadelphia,  1897. 


LIST    OF    AUTHORITIES.  XXIII 

Miinsterburg,  Hugo:  The  Americans.     Trans,  by  E.  B.  Holt.     New  York,  J904. 

Murray,  E.  C.  G. :  Embassies  and  Foreign  Courts.     London,  1885. 

Mussey,  R.  D.:  Was  the  Political  Agent  of  Switzerland  a  Diplomatic  Otticer?  A 
Study  in  International  Law.     By  a  Member  of  the  Bar.     (Pamphlet. ) 

Nation,  The. 

National  Geographic  Magazine. 

National  Intelligencer. 

Naval  Operations  during  the  War  with  Spain,  1898. 

Naval  Regulations  of  the  United  States. 

Neilson,  Joseph:  Memories  of  Rufus  Choate.     Boston,  1884. 

New  Annual  Register. 

New  Englander. 

New  York  Assembly  Documents. 

New  York  Courier  and  Imiuirer.  " 

New  York  Daily  Register. 

New  York  Evening  Post. 

\"pw  York  Herald. 

New  York  Journal  and  Patriotic  Register. 

New  York  Law  Journal. 

New  York  Legal  Observer. 

New  York  Sun. 

New  York  Times. 

New  York  Tribune. 

Xiles  Register. 

Nineteenth  Century  (magazine). 

Nitobe,  Inazo  Ota:  The  Intercourse  between  the  United  States  and  Japan.  Balti- 
more, 1891.      [J.  H.  U.  Studies,  extra  vol.  8.] 

Nord  Preussiche  Zeitung. 

North  American  Review. 

Nys,  Ernest:  Etudes  de  Droit  International  et  de  Droit  Politique.  Deuxieme  s6rie. 
Brussels  and  Paris,  1901. 

Le  Droit  International.     3  v.     Brussels  and  Paris,  1904-1906. 

Les  Origines  du  Droit  International.     Brussels  and  Paris,  1894. 

Official  Records  of  the  Union  and  Confe<lerate  Navies. 

Olivart,  Marquis  d':  Tratado  y  Notasdederechointernacional  publico.  2  v.  Madrid 
and  Barcelona,  1887-1888. 

Opinions  of  the  Attorneys-General  of  the  United  States,  \ .  1-23. 

Oppeniieim,  L. :  International  I^w.  2  v.  London,  New  York,  and  Bombay,  1905-, 
1906. 

Ortolan,  Theodore:  Regies  Internationales,  et  Diplomatie  <le  la  Mer.  4*=  ^d.  2  v. 
Paris,  1864. 

Owen,  Douglas:  Declaration  of  War;  a  Survey  of  the  Position  of  Belligerents  and 
Neutrals.     London,  1889'. 

Papers  relating  to  the  Treaty  of  Washingtf)n.     Washington,  1872. 

Papers  relative  to  the  Revolted  Spanish  Provinces.     MSS.  Dept.  of  State. 

I'arliamentary  Papers,  British. 

Part(jn,  James:  The  Danish  Islands:  Are  we  bound  in  honor  to  pay  for  them?  Bos- 
ton, 1869. 

Life  of  Andrew  Jackson.     2  v.     New  York,  1860. 

Paxson,   A.:    Tripartite    Intervention  in    Hayti,  1851,  The   University   of  Colorado 

Studies  (Feb.,  1904). 
Perels,  F. :  Manuel  de  Droit  Maritime  International  (trad.  Arendt).     1884. 

Das  internationale  offentliciie  Seerecht  der  Gegenwart.     Berlin,  1882,  1903. 

Perry,  T.  S. :  Life  and  Letters  of  Francis  Lieber.     Boston,  1882. 


XXIV  LIST    OF    AUTHORITIES. 

IVtin,  Hector:  Le.s  Etats-I'nis  et  La  Doctrine  de  Monroe.     Paris,  1900. 

Pliilliniore,  Sir  Rolx^rt:  Commentaries  upon  International  Law.     3  v.     Philadelphia, 

1854-7;  2d  ed.,  4  v.,  lx)ndon,  1871-4;  3d  ed.,  4  v.,  London,  1879-1889. 
Pickering,  Danby:   Statute.s  at  Large,  from  Magna  Charta  to  1865.     105  v.     Cam- 
bridge and  London,  17G2-18()5. 
Pickering,  Octavius:  Life  of  Timothy  Pickering.     4  v.     Boston,  1867-1873. 
Pillet,  A.:  Les  Lois  actnelles  de  la  (iiierre.     Paris,  1901. 
Pinheiro-Ferreira,  Sylvestre:    Cours    de  Droit  Public  Interne  et  Externe.      Paris, 

1820-1838. 
Pinkney,  Rev.  William:  Life  of  William  Pinkney.     New  York,  1853. 
Pistoye  (A.  de)  et  Duverdy  (Ch.):  Traite  des  Prises  Maritimes,  dans  lequel  on  a 

refondu  en  i)artie  le  Traite  de  Valin,  en  I'appropriant  A.  la  legislation  nouvelle. 

2  V.     Paris,  1859. 
Pitkin,  Timothy:    Political   and    Civil    History  of  the    United   States   of   America, 

1763-1797.     2  v.     Xew  Haven,  1828. 
Plocque,  Alfred:  Legislation  des   Kaux   et   de  la  Navigation,     vol.  1.     1870.     [v.  1 

containing:  De  la  Mer  et  de  la  Navigation  Maritime.] 
Political  Science  Quarterly. 
Pollock,  Sir  Frederick:  Treatise  on  the  Law  of  Torts.     New  York,  1898. 

[Same.]     7th  ed.     New  York,  1904. 

What  is  Martial  Law?     In  London  Times,  March  10,  1892. 

Poison,  Archer:  Principles  of  the  Law  of  Nations.     London,  1848. 

[Same.]    To  which  is  added  Diplomacy,  by  Thos.  H.  Home.    Philadelphia, 

1853. 

Pomeroy,  John  Norton:  I^'ctures  on  International  Law  in  Time  of  Peace.    Woolsey's 
ed.     New  York,  1886. 

Introduction  to  the  Constitutional  Law  of  tiie  United  States. 

Pradier-Fodcre,    P.:  ('ours  de  Droit  I)ij)lomati(jue.       2    v.     Paris,   1881.      (Biblio- 

theque  Internationale  et  Diplomatique,     v.  7-8. ) 

Traite  de  Droit  International  Public  Europeen  et  Am^ricain.     7  v.  Paris, 

188.=>-1897. 

Preussischen  Yahrbiicher. 

Printed  Personal  Instructions  to  Diplomatic  Agents  of  the  I'nited  States,  1885. 

Proceedings  of  the  American  Political  Science  Association. 

Proceedings  of  the  British  Academy. 

Proceedings  of  the  ^Massachusetts  Historical  Society. 

Proceedings  of  the  National  Association  for  the  Promotion  of  Social  Science. 

J^roceedings  of  the  New  York  Historical  Society. 

Proceedings  of  the  I'nited  States  Naval  Institute. 

Proclamations  and  Decrees  during  the  War  with  Spain. 

Publications  of  tlie  American  Jewish  Historical  Society. 

Plifendorf,  Samuel:   Le  Droit  de  la  Nature  et  des  (iens,  trad,  par  Barbeyrac.    5th  e<I. 

I>aw  of  Nature  and  Nations.     Trans,  into  English   by  Basil  Kennett  and 

others.     Oxford.  1703. 

(^larterly  Review. 

(^uincy,  Josiah:   Speeches  in   Congress,   1805-1813.      Edited    by   Edmund    Quincy. 

Boston,  1874. 
Ralston,  Jackson  H.  (assisted   by  Doyle,  W.  T.  Sherman):  Venezuelan  Arbitrations 

of  190;i     Washington,   1904.     Also   printed  as   Senate  Document   No.   316,  58 

Cong.  2  sess. 
Randall,  H.  S.:  Life  of  Thomas  Jefferson.     New  York,  1858. 
Randolph,  Carman  F. :  I^w  and  Policy  of  Annexation.     New  York  and  London, 

1901. 
Reddaway,  W.  F. :  The  Monroe  Doctrine.     Caiuijridge,  1898. 


LIST    OF    AUTHORITIES.  XXV 

Keed,  William  B. :  The  Diplomatic  Year;  Being  a  Review  of  Mr.  Seward's  Foreign 
Corresrpondence  of  1862.     By  a  Northern  ]Man.     Philadelphia,  1863. 

Reeves,  John:  History  of  the  I^w  of  Shipping.     London,  1792. 

Reichsanzeiger. 

Reinhard,  Franz  Vol kman:  ^Memoirs  and  Confes-sions,  from  the  (xerman.  By  O.  A. 
Taylor.     Bos^ton,  1832. 

Renault,  Louis:  Introduction  a  I'etude  du  droit  international.    Paris,  1869. 

;-     De  la  propriete  litt*''raire  au  point  devue  international. 

Des  crimes  politiques  en  matiere  d'extradition. 

Les  Conventions  de  La  llaye  (1896  et  1902)  sur  le  Droit  International  Privt'. 

Paris,  1903. 

Report  of  British  Royal  Commission  on  Fugitive  Slaves,  1876. 

Rej>orts  of  the  Commissioner  of  Navigation. 

ReiX)rt  of  the  Trial  of  Luis  Del  Valle,  Consul  of  the  Republic  of  Mexico  at  the  port 

of  San  Francisco,  for  a  Breach  of  the  Neutrality  Laws  of  the  United  States  in 

the  District  Court  of  the  United  States  for  the  Northern  District  of  California. 

San  Francisco,  1854. 
Reports  of  the  Commission  of  Investigation  sent  in  1873  by  the  Mexican  Govern- 
ment to  the  Frontier  of  Texa«.     New  York,  1875. 
Report  of  Isthmian  Canal  Commission,  Nov.  16,  1901,  S.  Doc.  54,  57  Cong.  1  sess., 

pt«.  1  and  2. 
Report  of  Isthmian  Canal  Commission,  Jan.  18,  1902,  S.  Doc.  123,  57  Cong.  1  sess. 
Report  of  the  Sjxjcial  Commission  appointed  by  the  Common  Council  of  the  City  of 

New  Y'ork  to  make  Arrangements  for  the  Reception  of  Louis  Kossuth. 
Report  of  Transvaal  Concession  Commission,  April  19,  1901,  Blue  Book,  South  Africa, 

June,  1901  (Cd.  623). 
Report  of  the  L'.  S.  Commission  of  Inquiry  sent  to  Santo  Domingo,  1871. 
Revue  de  Droit  International  et  de  Legislation  Comparee. 
Revue  des  Deux  Mondes. 
Revue  FranyaL^e  et  Etrangere. 

Revue  Generale  du  Droit,  de  la  Legi.>^lation  et  de  la  Jurisjirudence. 
Revue  Generale  du  Droit  et  des  Sciences  Politiques. 
Rhodes,  James  Ford:  History  of  the  United  States,  from  the  Compromise  of  1850. 

5  V.     New  Y'ork,  1900. 
Richard.son,  James  D. :  Messages  and  Papers  of  the  Presidents  [of  the  United  States]. 

10  v. 
Rio  Branco,  Baron.    See  Brazil  and  Bolivia. 

Riquelme,  A.:  Elementos  de  Derechf»  Publico  Internacional.     ^ladrid,  1849. 
Rives,  William  C. :  History  of  the  Life  and  Times  of  James   Madison.     Boston, 

18.59-' 68. 
Rivier,  Alphonse:  Principes  du  Droit  des  Gens.     2  v.      Paris,  1896. 

Note  sur  la  Litterature  du  Droit  des  (iens  avant  la  Publication  du  Jus  Belli 

ac  Pacis  de  Grotius,  1625. 

Robertson,  E. :  In  Encyclopaedia  Britannica,  XIII,  196,  art.  International  Law. 
Rockhill,  William  Woodville:  Treaties  and  C<jnventions  with  or  concerning  China 

and  Korea      Washington,  1904. 
Rodriguez,  Jose  Ignacio:  American  Constitutions.     A  Compilation  of  the  Political 

Constitutions  of  the  Independent  Nations  i  if  the  New  Woild,  with  short  historical 

notes  and  various  appendices,     vol.  1.     Washingt<jn,  1906. 
Rosenthal,   Lewis:   America  and  France;  The  Influence  of  the  United  States  on 

France  in  the  Eighteenth  Century.     New  York,  1882. 
Rush,  Richard:  Memoranda  of  a  Residence  at  the  Court  of  London.     Philadelphia, 

1833;  second  series,  2  v.,  London,  1845. 
Russell,  Lord  J.:  Life  of  C.  J.  Fox.     London,  1859. 


XXVI  LIST    OF    AUTHORITIES. 

Kus?»-ll,  Sir  William  O. :  Triatise  on  Crimes.  9tli  Amer.  e<l.  3  v.  Philadelphia,  1877. 
And  variiius  editions. 

Rutherforth,  Thonia.*:  Ini-titutes  of  Natural  Law.  London,  1754.  2<1  Anier.  ed. 
Baltimore.  1S.S2. 

Sabine,  I^renzo:  Report  oiuthe  Principal  Fisherier-  of  the  American  Seas.  Wash- 
ington. 1853. 

Sanford,  H.  S. :  The  Aves  Island  Case,  with  the  Correspondence  relative  thereto,  and 
Discussion  on  Law  and  Facts.     Pamphlet.     Washington,  1861. 

Savigny,  Friedrich  Carl  von:  Private  International  Law.  Translated,  with  notes, 
by  Wm.  Guthrie.     2nd  ed.     Edinburgh,  1880. 

Traite   de    Droit  Romain;  traduit  de  TAllemand  par   Ch.    Guenox.      8  v. 

Paris.  1840-51. 

Schmalz.     Da<  europaische  Volkerrecht.     Berlin,  1817. 

Schofield,  John  M.:  Forty-six  Years  in  the  Army.     New  York,  1897. 

Schouler.  James:  History  of  the  L'nited  States.     4  v.     Washington,  1880-89. 

Scliuyler,  Eugene:  Anierican  LUplomacy,  1886. 

Scidmore,  G.  M.:  Outline  I>ectures  on  the  History,  Organization,  Jurisdiction  and 

Practice  of  the  Ministerial  and  Consular  Courts  of  the  L'nited  States  in  Japan. 

Tokio,  18S7. 
Scott,  Robert  N.:  An  Analytical  Digest  of  the  Military  I^ws  of  the  l'nited  States. 

Philadelphia,  187.3. 
Sehurz,  Carl:  Life  of  Henry  Clay.     2  v.     Bo.ston  and  New  York,  1888. 
Scott,  James  Brown:  Cases  on  International  Law.     Ba.sed  on  the  late  Dr.  Freeman 

Snow's  Cases  and  Opinions  on  International  l>aw.     Boston,  1902. 
Scott,  Lieut.  Gen.  Wintield:  Memoirs  of.     Written    by    Himself.      2v      New  York, 

1864. 
Scribner's  Magazine. 
Second  International  Conference  of  American  States  (Mexico,  1901-1902).     (S.  Doc. 

330,  57  Cong.  1  .se&«. )     Washington,  1902. 
Se<lgwick,  Theodore:  Treati.«e  on  the  Rules  which  govern  the  Interpretation  and 

Application  of  Statutory  and  Con.stitutional  Law.     New  York,  1857. 

[Same]     2nd  e<l.  by  John  N.  Pomeroy.     New  York,  1874. 

Segunda  Conferen<'ia  Internacional  Americana.  Mexico,  1901-1902.  Organizacion  de 
la  Conferencia,  proyectos,  informes,  dictiimentes,  debates  y  resoluciones. 
Mexico,  1902.     Actas  y  documentos.     Mexico,  19t)2. 

Seijas,  R.  F. :  KI  Derecho  Internacional  Hispano-.\mericano.     6  v.     Caracas,  1884. 

.•^elden.  John:  Mare  clausum,  sen  <le  dominio  maris.      Londini,  16;i5. 

[Same]  Form»'rly  translated  into  English,  and  now  jierfecteil  by  J.  LL  Lon- 
don, 1663. 

.'^eligman,  E.  R.  A.:  ?]ssays  in  Taxation.     New  York.  1cSm5. 
Senate  Executive  Documents  [of  the  l'nited  States]. 
Senate  Executive  Journals  [of  the  United  States], 
.""^enate  MisceUaneous  Documents  [of  the  L'nited  States]. 
Shepard,  Eilwanl  M.:  Martin  Van  Buren.     Bo.><ton,  1898. 

Sheppard,  VM  T. :  The  American  Consular  Service.  The  Univ.  Press.  Berkeley,  Cal.. 
19<11;  reprinted  from  the  L'niversity  [of  Cal.]  Chronicle. 

Extraterritoriality:  pamphlet. 

Siebold,  Baron  .\lexander  von:  Japan's  Act-e.-^sion  to  the  Comity  of  Nations.    Trans. 

from  the  German  by  Ch.  Lowe.     London,  1901. 
Smith,  W.  L.  <;.:  Fifty  Years  of  Public  Life:  the  Life  ami  Times  of  Lewis  Cas.«. 

New  York,  18.56. 
Snow,  Freeman:  Treaties  and  Topic-s  in  American  Diplomacy.     Boston,  1894. 

Ca.«es  and  Opinions  on  International  I.aw.     Boston,  1893. 

I^ectures  on  International  I^w,  2nd  ed.,  bv  Stockton.     1898. 


LIST    OF    AUTH0RlTIi:3.  XXVII 

Solicitor's  Journal. 

Southern  Law  Review. 

Southern  Quarterly  Review. 

Sparks,  Jared:  Diplomatic  Correspondence  of  the  American  Revolution.  6  v. 
Boston,  1829-30. 

Sjiear,  Samuel  S. :  A  Treatise  on  Extradition,  International  and  Interstate.  2nd  e<l. 
Albany,  1884. 

Special  Report  on  the  Fisheries  Protection  Service  of  Canada.     1886. 

Spence,  George:  Equitable  Jurisdiction  of  the  Court  of  Chancery.  2  v.  Phila- 
delphia, 1846-50. 

Staatsarchiv,  Da.s:  Sandung  der  othcielen  Actenstiicke  zur  (leschichte  der  (jegen- 
wart.     Vol.  I,  1861;  continued  up  to  date. 

Stan  wood,  Edward:  History  of  the  Presidency.     Boston,  1898. 

Stapleton,  Augustus  Granville:  The  Political  Life  of  the  Right  Honourable  George 
Canning.     2d  ed.     3  vols.     London,  1831. 

Stark,  F.  R. :  The  Abolition  of  Privateering  and  the  Declaration  of  Paris.  New 
York,  1897. 

Stephen,  Sir  J.  F. :  History  of  the  Criminal  Law  of  England.    3  v.    London,  1883. 

Digest  of  the  Criminal  Law.     St.  Louis,  1877. 

Steven.son,  Sara  Yorke:  Maximilian  in  Mexico.     Xew  York,  1899. 

Stockton,  Capt.  Charles  H.,  U.  S.  X.:  The  Laws  and  Usages  of  War  at  Sea.  A  Naval 
War  Code.     Washington,  1900. 

Submarine  Telegraph  Cables  in  Time  of  War,  in  Proc.  of  U.  S.  Naval  Insti- 
tute, XXV,  452. 

Stocquart,  Emile:  Studies  in  Private  International  Law.     Brussels,  1900. 

Le  Mariage  en  Droit  Ecossais. 

Story,  Joseph:  Commentaries  on  the  Law  of  Agency. 

Commentaries  on  the  Constitution  of  the  United  States.    3  v.    Boston,  1833. 

[Same.]     4th  ed.     By  Thomas  M.  Cooley.     2  v.     Boston,  1873. 

C(jmmentaries  on  the  Conflict  of  Laws.     5th  ed. 

Notes  on  the  Principles  and  Practice  of  Prize  Courts.     Edited  by  Frederic 

T.  Pratt.     London,  1854. 

Story,  W.  W.:  Life  and  Letters  of  Joseph  Story.     2  v.     Boston,  1851. 

Stroock,  Sol.  ^L:  Switzerland  and  American  Jews,  in  Publications  of  Am.  Jewish 

Hist.  Society,  No.  11,  1903. 
St.  Thomas  Treaty;  a  Series  of  Letters  to  the  Boston  Daily  Advertiser.     New  York, 

1869. 
Suarez,  Francisco  de  P.:  Plan  of  International  Peace  League.     In  Bulletin  du  Con- 

grcs  de  la  Paix,  Anvers,  1894,  Annexe  VI. 
Sullivan,  Lieut.  John  T. :  Problem  of  Interoceanic  Conununication  by  Way  of  the 

American  Isthmus.     Washington,  1883. 

Report  of  Historical  and  Technical  Information  relating  to  the  Problem  of 

Interoceanic  Communication  by  way  of  the  American  Isthmus;  with  plates  and 
maps;  April  28,  1883;  H.  Ex.  Doc.  107,  47  Cong.,  2  sess. 

Sumner,  Charles:  Memoirs  and  Letters  of.     By  F..  L.  Pierce.     4  v.     Boston,  1877-93. . 
Takahashi,  Sakuye:  Cases  on   International   Law  during  the  Chino-Japanese  War. 

Cambridge  [Eng.],  1899. 
Taylor,  Hannis:  A  Treatise  on  International  Public  Law.     Chicago,  1901. 
Testa,  Carlos:  Le  Droit  Public  International  Maritime,  traduction  du  Portugais  par 

Boutiron.     Paris,  1886.     [Bibliotheque  Internationale  et  Diplomatique,  vol.  18.] 
Testa,  I.  de:  Recueil  des  traites  de  la  Porte  Ottomane  avec  les  puissances  Etrangeres: 

continue  par  ses  fils  le  Baron  Alfred  de  Testa  et  le  Baron  Leopold  de  Testa.     4  v. 

Paris,  1864-76. 


XXVIII  LIST    OF    AUTHORITIES. 

Teti'iis,  J.  N.:  C'onsidt'ratioiis  ?ur  les  droits  reciprucjues  des  puissances  bellig^rantes, 
et  des  jiuissaiu'es  lu'utres,  sur  mer,  avec  les  principes  du  droit  de  guerre  en  gen- 
eral.    Copenhagen,  1805. 

.Thonia.-^,  Henri:  Des  requisitions  niilitaires  et  des  logement  des  gens  de  guerre  en 
f  ranee.     Paris,  1889. 

Todd,  Charles  Burr:  Life  and  Letters  of  Joel  Barlow.     New  York,  1886. 

Toro,  Caspar:  Nota.s  .«obre  Arbitraje  Internacional  en  la.s  Kepublicas  liatino-Anieri- 
canas.     Santiago  de  Chile,  1898. 

Tran.«actions  of  the  First  Pan-American  Medical  Congress,  held  in  the  City  of  WtL<h- 
ington,  D.  C,  V.  S.  A.,  September  5,  6,  7,  and  8,  A.  D.  1898.  2  v.  Washington, 
1895. 

Travis,  Ira  Dudley:  The  History  of  the  Clayton-Bulvver  Treaty.  [Publications  of 
the  Mich.  Pol.  Sci.  Assn.,  v.  III.     No.  8,  Jan.  1900.] 

Treaties  and  Conventions  between  the  United  States  and  Other  Powers,  177(3-1887. 
Washington,  1889. 

Trescot,  William  Henry:  The  Diplomacy  of  the  Revolution.     New  York,  1852. 

The  Diplomatic  History  of  the  Administrations  of  Washington  and  Adams, 

1789-1901.     Boston,  1857. 

Trial  of  the  Officers  and  Crew  of  the  Privateer  Savannah  on  the  (;harge  of  IMracy, 
in  U.  S.  Circuit  Court  for  Southern  District  of  N.  Y.  Reported  iiy  A.  F.  War- 
burton.     New  York,  1862. 

Trumbull,  John:  Autol)iograi)hy,  Reminiscences,  and  Letters.  New  York,  New 
Haven,  and  London,  1841. 

Tucker,  George:  Life  of  Thomas  Jefferson.     Philadelphia,  18.S7. 

Tucker,  G.  F. :  The  Monroe  Doctrine.     Boston,  1885. 

Tucker,  Henry  St.  (ieorge:  Lectures  on  Constitutional  Law.     Richmond,  18415. 

Twis.«,  Sir  Travers:  Pamphlet  on  the  ca.«e  of  the  Springbok. 

Belligerent  Rights  on  the  Higli  Seas  since  the  Declaration  of  Paris,  1856. 

London,  1884. 

The  Oregon  Question  lOxamined,  in  re»«pect  to  facts  an<l  the  Law  of  Natiojis. 

London,  1846. 

I^w  of   Nations  considered  as  Indei>endent   Political  Communities.     The 

Right  and  Duties  of  Nations  in  Time  of  Peace.     Oxford,  1861. 

[Same.]  Revised  Ed.     Oxford,  1884. 

[Same.]  The  Rights  and  Duties  of  Nations  in  Time  of  War.     London,  1863. 

[Same.]  2d.  ed.     Oxford,  1875. 


United  States  Law  Intelligencer  and  Review. 

UHIh^:  Anales  Diplomaticos  y  Consulares  de  Colombia,  1901. 

Valin,  Rene  J.:  Commentaire  sur  I'Ordonnance  de  la  Marine  du  mois  d'aout  1681. 

Paris,  1836. 
Traite  des  Prises,  ou  ])rincipes  de  la  jurisprudence   fran(;ai.>Je  concernant  les 

j)rises  (jui  se  font  sur  mer.     Rochelle  et  Paris,  1782. 
Van  Dyck,  Edward  A.:  Reports  upon  the  Capitulations  of  theOttoma!i  Kmi>ire  since 

the  year  1150.     Washington,  1881-1882. 
Vattel,  Emerich  de:  Le  Droit  des  Gens;  ou,  Principes  de  la  Loi  Natureile  appliques 

a  la  conduite  et  aux  affaires  des  Nations  et  des  Souverains.     Nouvelle  ed.     Par 

P.  Pradier-Fodcre.     3  v.     Paris,  1863. 

Law  of  Nations;  or  Princijjles  of  the  Law  of  Nature  Ai)plied  to  the  Conduct 

and  Affairs  of  Nations  and  Sovereigns.     Translateil   from   the  French.     Witli 
Notes  by  J.  Chitty  and  E.  D.  Ingraham.     Philadelphia,  1859. 

Viallate,  Achille:  E.ssais  d'Histoire  Diplomati()ue  Americaine.     Paris,  1905. 
Yon  Hoist,  H.:  John  C.  Calhoun.     12th  ed.     Bo.«ton,  1888. 

Constitutional  and  Political  History  of  the  United  States.    Trans,  fr.  German 

by  Salor  and  Ma.son.     8  vols.     Chicago,  1889. 


LIST    OF    AUTHORITIES.  XXIX 

Wait,  T.  B. :   State   Papers  and   Publif,   Docniuents  of   the  United  States.     3d  ed. 

Boston,  1819. 
Walker,  Thomas  Alfred:  The  Science  of  International  Law.     London,  1893. 

A   History  of  the  Law  of  Nations.     V.   I.,  from  the  Earliest  Time  to  the 

Peace  of  Westphalia.     Cambridge,  1899. 

War  in  South  America  and  Attempt  to  bring  about  a  Peace.     AVashington,  1882. 

Ward,  Robert:  Treatise  on  the  Relative  Rights  and  Duties  of  Belligerent  and  Neu- 
tral Powers  in  jMaritime  Affairs.     London,  1801. 

Enquiry  into  the  Foundation  and  History  of  the  Law  of  Nations  in  Europe, 

from  the  time  of  the  Greeks  and  Romans  to  the  age  of  Grotius.  2  v.  London, 
1795. 

Washburn,  Charles  A.:  History  of  Paraguay.     2  v.     Boston  and  New  York,  1871. 

Washington,  George:  Writings;  collected  and  edited  by  W.  C.  Ford.  11  v.  New 
York,  1889-91. 

Writings;  edited  by  J.  Sparks.     New  York,  1847-48. 

Washington  Post. 

Wey)ster,  Daniel:  Works  of.     12th  ed.     6  v.     Boston,  1860. 

Private  Correspondence  of.    p]dited  by  Fletcher  Webster.    2  v.    Boston,  1857. 

AVebster,  Sidney:  Two  Treaties  of  Paris  and  the  Supreme  Court.     New  York,  1901. 
Weed,  Thurlow:  Life  of.     2  v.     Boston,  1883-4.     Vol.  L,  Autobiography,  edited  by 

Harriet  A.  Weed;  Vol.  II.,  Memoir,  by  Thurlow  Weed  Barnes. 
Welles,  Gideon:  Lincoln  and  Seward. 

Welling,  James  C,  in  National  Intelligencer,  June  1,  1858. 
Wellington,  Duke  of  (Arthur  Wellesley):  Despatches  of.     Compiled  from  official 

documents,  by  J.  Gurwood.     8  v.     London,  1852. 
Westlake,  John:  International  Law.     Part  1,  Peace.     Cambridge  [Eng.],  1904. 

Chapters  on  the  Principles  of  International  Law.     1894. 

Wharton,  Francis:  Commentaries  on  Law.     Philadelphia,  1884. 

A  Digest  of     the    International    Law  of  the  United  States.     2d  ed.     3  v. 

Washington,  1887. 

Treatise  on  the  Conflict  of  Laws,  or  Private  International  Law;  including  a 

comparative  view  of  Anglo-American,  Roman,  German,  and  French  Jurispru- 
dence.    2d  ed.  1881.     Philadelphia,  1872. 

Diplomatic  Correspondence  of  the  American  Revolution,  6  v.     Washington, 

1889. 

State  Trials  of  the  United  States  during  the  Administrations  of  Washington 

and  Adams.     Philadelphia,  1849. 

Treatise  on  the  Criminal  Law  of  the  United  States.     9th  ed.     2  v.     Phila- 


delphia, 1885. 

Treatise  on  the  Law  of  Negligence.     2d  ed.      I'hiladelphia,  1878. 


Wharton,  J.  J.  S. :  Law  Lexicon;  or.  Dictionary  of  Jurisprudence.     London,  1883. 
Wheaton,  Henry:  Elements  of  International  Law;  with  a  sketch  of  the  History  of 

the  Science.  2d  ed.,  edited  with  notes,   by  W.  B.  Lawrence,   Boston,   1863;  8th 

ed.,  edited  with  notes,  by  R.  H.  Dana,  jr.,  Boston,  1866. 

Commentaire  sur  les  Elements  du  Droit  International,  et  sur  I'llistoire  des 

Progres  du  Droit  des  Gens.     Precede  d'une  notice  sur  la  carricre  diplomatique 
de  M.  Wheaton,  par  W.  B.  Lawrence.     4  v.     Leii)zig,  1868-1880. 

History  of  the  Law  of  Nations  in  Europe  and  America,  from  the  Earliest 

Period  to  tiie  Treaty  of  Washington,  1842.     Philadelphia,  1845. 

Digest  of  the  Law  of  Maritime  Captures  and  Prizes.     New  York,  1815. 

An  Inquiry  into  the  Validity  of  the  British  Claim  to  a  Right  of  Visitation 

and  Search  of  American  Vessels  Suspected  to  be  Engaged  in  the  Slave  Trade. 
London,  1842. 

Life,  Writings,  and  Speeches  of  William  Pinkney.      New  York,  1826. 


XXX  LIST    OF    AUTHORITIES. 

WicqiH'fort,  A.  van:  The  Embassador  and  his  Functions.     Translated  into  English 

by  John  I)igl)v.      2d  ed.,  London,  1740. 
Wildnian,  Rii-hard:  Plain  Directions  for  Naval  Officers  as  to  the  Law  of  Search, 

Capture,  and  Prize.     London,  1854. 

Institutes   of   International   Law.     2   v.   in  1.     Philadelphia,   1850.      [Law 

Lil)rary,  vols.  68,  70.] 

Wilson,  (leorge  Grafton:  Lectures  delivered  at  the  Naval  War  College,  Aug.,  1901. 

Washington:  (ioverninent  Printing  Office,  1901. 
Williams,  Sir?"dward  V.:  Treatise  on  the  Law  of  Executors  and  Administrators. 

7th  Am.  ed.     Randolph  &  Talcott's  notes. 
Winsor,  Justin:  Narrative  and  Critical  History  of  America.    8  vols.     Boston,  1886-89. 
Wolff,  Christian  von:  Institutions  du  Droit  de  la  Nature  et  des  Gens.     Avec  des 

notes  par  K.  Luzac.     2  v.     Leyde,  1772. 
Woolsey,  Theodore  Dwight:  Introduction  to  the  Study  of  International  Law. 
Woolsey,  Theodore  S. :  American  Foreign  Policy,  Essays  and  Addresses.     New  Y(jrk, 

1S98. 

Right  of  Search  and  its  Limitations  in  time  of  Peace.     Lecture,  1896. 

Wyman,  Walter,  Surgeon-Gen.,  V.  S.  ]\Iarine-Hospital  Service:  Public  Health  Serv- 
ice in  the  V.  S.,  in  Cleveland  Journal  of  Medicine,  Feb.,  1897. 

Wynne,  William:  Life  of  Sir  Leoline  Jenkins.     2  v.     London,  1724. 
Yale  Law  Journal. 
Yale  Review. 


TABLE  OF  CONTENTS. 


Chapter  I. 
INTERNATIONAL  LAW. 


I.  Its  origin  and  oliligation.     §  1. 
Early  treatises. 

The  term  "international  law." 
Sources  of  authority. 
Nature  and  force  of  obligation. 
Effect  of  usage. 
Presumption  as  to  assent. 
II.  Part  of  the  law  of  the  land.     §  2. 
Judicial  declarations. 
Opinions  of  statesmen. 
Question  of  proof. 


Chapter  II. 

STATES:   THEIR  CHARACTERISTICS  AND  CLASSIFICATION, 

I.  Definitions  of  the  State.     §  8. 
General  definitions. 
Particular  elements. 
Excluded  associations. 
Principles  of  inclusion  and  exclusion. 
Protected  j)rinccs  of  India. 
Colonial  pos,ses.sions. 
II.  Sovereignty  and  independence.     §  4. 

Idi'as  of  sovereignty  and  independence, 
beginning  of  sovereign  existence. 
Internal  and  external  sovereignty. 
National  obligations. 
External  influence. 
External  guaranties. 
III.  Classification  of  States. 

1.  Simple  States.     §  5.  • 

Their  characteristic. 

(1)  Single  States.     §  6. 

(2)  Personal  union.     §  7. 


XXXII  TABLE    OF    CONTENTS. 

III.  Classification  of  States — Continue<l. 

2.  Com[)o.«ite  States.     §  8. 

(1)  Real  union.     §9. 

(2)  Confederation.     §  10. 

(3)  Feileral  union.     §  11. 

Unite*!  States  of  .\meriea. 
German  Empire;  Switzerland. 
3    Neutralized  State?.     §  12. 

Belgium,  Ionian  Islands,  Savoy,  Switzerland. 

Luxeniljurg. 

Congo. 

Samoa. 

4.  Semi-sovereign  States  and  protectorate.^. 

(1)  Semisovereign  States.     §  13. 

Suzerain  and  subject. 

Egypt,  Bulgaria,  Transvaal,  and  other  examples. 

(2)  Protected  States  and  i>rotecto rates.     §  14. 

Ionian  Islands,  Andorra,  San  Marino,  Monaco. 
Countries  not  possessing  European  civilization. 

5.  American  Indians. 

(1)  Their  dependent  relation.     §15. 

'"Domestic  dependent  nations." 

Subjection  to  Federal  legislation. 

Eminent  domain. 

Domestic  subject.«,  not  citizens. 

Local  self-government. 

Comparison  with  native  States  of  India. 

Conniierce  with  aV)original  tril>es. 

(2)  Inability  to  transmit  title.     §  16. 

(3)  Treaties.     §  17. 

6.  The  Holy  See.     §  18. 

IV.  The  State  and  its  government. 

1.  Distinction  l>etweeii  State  and  (Government.     §  19. 

2.  De  facto  governments. 

(1)  Different  kinds.     §  20. 

Cla.ssitication  and  jxjwers. 
Insurrection  and  revolt. 

(2)  Military  occupation.     §  21. 

By  recognized  government:  ('a.«tine. 
Tampico. 

California  and  New  Mexico. 
New  ( >rleans. 

Cuba  and  the  Philijipines. 
Continuation  of  powers  after  annexation. 
.Occupation  V)y  insurgents:  Mazatlaii. 
Bluefields. 

(3)  The  Confederate  States.     §  22. 

De  facto  supremacy;  effects  and  limitations. 
Confederate  and  State  governments. 
Cajiacity  to  take  and  hold  projx»rty. 
Se<)uestratiiin  and  confiscation  act.«. 
Summary  of  jmlicial  deci.-^ions. 
Confe<lerate  debts  and  obligations. 


TABLE    OF    CONTENTS.  XXXIII 

V.  Rights  and  duties  of  State?. 

1.  Fundamental  rights  and  duties.     §23. 

General  summary. 

Kecjuirement  of  "due  diligence." 

2.  Equality.     §  24. 

3.  Property. 

(1)  Ownership  and  transfer.     §  25. 

(2)  iSuccession  in  case  of  unsuccessful  revolt.     §  26. 


Chaiter  III. 
STATES:  THEIR  RECOGNITION  AND  CONTINUITY. 

I.  General  i)rinciples.     §  27. 
Right  and  duty. 
Mode. 

Premature  recognition. 
Conditional  and  limited  recognition. 
II.  Recognition  of  new  States. 

1.  Revolution  in  Spanish-America.     §  28. 

2.  Venezuelan  provinces.     §  29. 

Revolts  at  Caracas. 

Agents  to  the  I'nited  States. 

President  Madison's  message,  Novendier  5,  1811. 

Temporary  reascendency  of  Spain. 

Protest  as  to  Amelia  Island. 

3.  United  Provinces  of  South  America.     §  30. 

Assemblies  at  Buenos  Ayres  and  Tucuman. 
Demand  for  recognition. 
()j)ini(jn  of  Mr.  Adams. 
Refusal  to  receive  a  consul. 

4.  Chile.     §  31. 

5.  Colond)ia.     §  32. 

6.  :\Iexic().     §  33. 

7.  Peru.     §  34. 

8.  Course  of  United  States,  1816-1821.     §  35. 

Commission  of  inquiry,  1817. 

Mr.  Clay's  motion,  1818. 

Proposal  to  (ireat  Britain. 

Attempted  mediation  of  the  allies. 

President  Monroe's  message,  F)ecend)er  7,  1819. 

Action  of  the  House,  1820-1821. 

President's  message,  December  3,  1821. 

9.  Recognition  of  various  Latin-American  States.     §  36. 

^Message  as  to  recognition,  March  8,  1822. 

Appropriation  for  missions. 

Protest  of  Spanish  minister. 

Air.  Adams's  response. 

Republic  of  Colombia — New  (iranada,  Ecuador,  Venezuela. 

H.  Doc.  551 III 


XXXIV  TAHLE    OF    CONTENTS. 

JI.   Rt'co^'iiition  of  now  States — ('(Hitiiined. 

y.   la'fo^iiiiioii  of  various  Latin- .Vnu'rit-an  .States.     §  :>0 — Continneil. 
Buenos  Ayres;  also,  Uruguay,  l*araguay. 
('l>ile. 
Mexico. 
Brazil. 

Central  .Vnierican  States. 
rem. 

British  recognition:  Buenos  Ayres,  Colombia,  Me.xico. 
(lood  otlices  witli  Spain. 

Negotiations  with  Spain;  attitude  of  I'nited  States. 
lU.  Texas.     §  :^7. 

Report  of  Mr.  Clay. 

I*resident  Jai'kson's  message,  December  21,  l.SIUi. 

Aj)i)ropriation  l)y  Congress. 

Act  of  recognition. 

Reply  to  Mexican  protest. 

11.  The  Confederate  States.     §  38. 

Circular  of  Mr.  Black. 

Circular  of  Mr.  Seward. 

Failure  of  attem})ts  to  obt<vin  recognition. 

12.  Ilayti  and  Dominican  Republic.     §  39. 

13.  Case  of  Cuba.     §  40. 

President  Grant's  message,  December  7,  1875. 
President  Cleveland's  mes.sage,  December  7,  1896. 
President  McKinley's  message,  April  11,  1898. 
Joint  resolution  of  April  20,  1898. 

14.  Recognition  of  European  States.     §  41. 

Belgium. 

( i  reece, 

Ca.se  of  Sicily. 

Case  of  Hungary. 

Roumania. 

Servia. 

15.  States  in  Africa  and  the  East.     §  42. 

I  jl)eria. 

Orange  Free  State, 
(.'ongo. 
Corea. 
|n.  Recognition  of  new  governments. 

1.  France.     §  43. 

Revolution  of  1792. 

.Jefferson  to  .Morris,  March  12,  1793. 

Response  to  .M.  Ternant. 

Reception  of  (ienet. 

The  Empire  and  the  Monarchy. 

Revolution  of  18.30;  Louis  Philipi)e. 

The  Republic,  1848. 

Revolution  of  1851 :  Second  Empire. 

Mr.  Webster  to  Mr.  Rives,  January  12,  1852. 

The  Republic,  ls70. 

2.  The  Netherlands.     §  44. 

Case  of  al)sorption. 
Death  of  a  sovereign. 


TABLE    OF    CONTENTS.  XXXV 

III.  Recognition  of  new  governments — Continued. 

3.  Rome,  and  the  Papal  State's.     §  45. 

Rom^n  Republic. 
Papal  States. 

4.  Spain.     §  4(). 

Napoleonic  government:  suspension  of  decision. 

Consular  functions. 

Ferdinand  VII. 

Duke  of  Aosta,  1870. 

The  Republic  and  its  successor. 

5.  Portugal.     §  47. 

Dom  Miguel. 

6.  German  Empire.     §  48. 

7.  Colombia.     §  49. 

Mr.  Van  Buren's  instructions. 
Moajuera  government  and  its  successor. 
Marroquin  government,  1890. 

8.  Central  America.     §  50. 

Nicaragua:  Rivas- Walker  government. 

Costa  Rica,  1868. 

Salvador,  1890. 

Greater  Republic  of  Central  America. 

9.  Mexico.     §  51. 

Comonfort,  Zuloaga,  Miramon  governments. 

Juarez  government. 

The  Empire. 

First  Diaz  government. 

10.  Venezuela.     §  52. 

Paez  government. 

Falcon  government. 

Revolution  of  1879:  Guzman  Blanco. 

CresjK)  government. 

Castro  government. 

11.  Bolivia;  Ecuador.     §  53. 

Bolivia:  Melgarejo  government. 
Revolution  of  1899. 
Ecuador. 

12.  Peru.     §  54. 

Pierola  government. 

Calderon  government. 

Iglesias  government. 

Deposition  of  Iglesias;  interregnum. 

Provisional  government. 

13.  Brazil.     §  55. 

The  Republic. 

14.  Chile.     §  56. 

Revolution  of  1891. 

15.  Hawaii.     §  57. 

Deposition  of  the  monarchy. 

16.  Santo  Domingo.     §  58. 

Revolution  of  1899. 

IV.  Recognition  of  belligerency. 

1.  Conditions  and  effects  of  recognition.     §  59. 

2.  The  American  Revolution.     §  60. 


XXXVI  TABLE    OF    CONTENTS. 

IV.   Recognition  of  iK'Ui^ercncy — Continued. 

3.  Revolution  in  Spanish  America.     §  <>1. 

Instructions  to  collectors  of  customs,  July  8,  1H15. 
President's  prochimation,  Sei)teml)er  1,  1815. 
Note  of  Mr.  Monroe,  January  lit,  ISKl. 
President  Madison's  messajje,  I)ecend)er  2(1,  181(5. 
Mr.  Monroe's  letter,  January  10,  1817. 
President  Monroe's  message,  December  2,  1817. 
INIes-sage  on  Amelia  Island,  Novenil)er  17,  1818. 
A(;tion  of  the  courts. 
President  Monroe's  messajre,  March  8,  1822. 

4.  Revolution  in  Texas.     §  62. 

Hospitality  to  vessels. 
Duty  of  parent  government. 

5.  Buenos  Ayres  and  Montevideo,  1844.     §  6'A. 

Duty  of  neutral  navies, 
t).  Peru— the  Vivanco  insurrection.     §  ()4. 

Nonaction  of  foreign  governments;  rights  and  duties  of  their  citizens. 

7.  Mexico.     §  (55. 

Miramon  government;  question  oi  blockade. 
Juarez  and  Maximilian. 

8.  The  Confederate  States.     §  (5(5. 

ActionOf  i)o\vers;  Mr.  Seward's  attitude. 

Withdrawal  of  recognition. 

Corresi)ondence  of  Mr.  Adams  and  Earl  Russell,  18t55 

Decisions  of  the  Supreme  Court. 

Position  of  Mr.  Fish. 

9.  Cuba.     §  (57. 

Insurrection  of  1868. 

President  Grant's  annual  message,  1869. 

Special  message,  June  VA,  1870. 

Annual  message,  1875. 

Insurrection  of  1895. 

President  Cleveland's  annual  message,  1896. 

President  McKinley's  ainiual  message,  1897. 

10.  Colond)ia.     §  68. 

Insurrection  of  1885. 

11.  Hayti.     §  (59. 

Factional  contest,  1889. 

Rei|uisite  evidences  of  recognition. 

12.  Brazil.     §  70. 

Naval  revolt,  189;!. 
.\ction  of  foreign  representatives. 
Demand  for  recognition;  refusal. 
Limitation  of  insurgent  operations. 
Action  of  Admiral  Benham. 
Position  of  United  States, 
l.'l  Semi-sovt'reign  state  and  its  suzerain.     §  71. 
-Madagascar. 

South  African  Republic. 
V.   Acts  falling  short  of  recognition. 
1.  Of  new  States.     §  72. 

Acts  and  implicatifins. 

Unofficial  intercourse;  the  American  Revolution. 


TABLE    OF    CONTENTS.  XXXVII 


V.  Act-J  fallinfr  sliort  of  recognition — Continued. 

1.  Of   newStattg.     §72 — Continued. 

Revolution  in  Spanish  America. 

Revolution  in  Yucatan. 

The  Confederate  States. 

Letter  of  His  Holines.s  the  Pope. 

Delegation  of  the  South  African  Repu1)lics. 

Special  agents — South  America  and  Greece. 

Hayti. 

Santo  Domingo. 

Paraguay. 

Mr.  Claim's  mission  to  Hungary:  its  objects. 

Kxpres.>^ions  of  sympathy. 

Pul)lication  of  Mr.  Mann's  instructions. 

Mr.  Hiilsemann's  protest. 

Mr.  Webster's  rejily. 

2.  Of  new  governments.     §  73. 

Unofficial  communications. 

Venezuela. 

Salvador. 

Mexico;  consular  functions. 

Nicaragua. 

Santo  Domingo. 

3.  Of  belligerency.     §  74. 

Insurgency  or  revolt. 
VL  Recognition,  by  whom  determinable.     §  75. 
Summary  of  precedents. 
Spani.sh- American  States. 
Texas. 

Statement  of  Mr.  Buchanan. 
^Ir.  Mann's  instructions. 
Position  of  Mr.  Seward. 
Decisions  of  the  courts. 
VIL  Continuity  of  States. 

1.  Territorial  changes.     §  76. 

2.  Changes  in  population.     §  77. 

3.  Political  changes.     §  7S. 

4.  Suspension  (jf  independence.     §  79. 


Ch.\pter  IV. 
SOVEREIGNTY;  ITS  ACQUISITION  AND  LOSS. 


I.  The  acquisition  and  loss  of  territory. 
L  Occupation. 

(1)  Discovery.     §  vSO. 

(2)  Settlement.     §  81. 

Extent  of  possession. 
Continuity. 
Contiguity. 
Berlin  declaration. 


XXXVlIl  TABLK    OF    (^ONTENTS. 

I.  Tlif  ac(iuisitioii  ami  loss  <if  territory — ("ontiniieil. 

2.  Accretion.     §  H2. 

3.  Cession. 

(1)  Consent  of  the  population.     §  S;i  — 

(2)  Protection  of  territory  pemlinjr  annexation.     §  84. 

(3)  Question  as  to  annexation  by  a  neutral  durinji  war.     §  8o. 

(4)  ProjK'rty  that  pa.«ses  l)y  cession.     §  86. 

Ca.se  of  Louisiana. 

The  Floridas. 

Alaska. 

Spanish  islands,  1898. 

4.  Conquest.     §  87. 

5.  Prescription.     §  88. 

Opinions  of  pu})licists. 
Judicial  decisions. 
Venezuelan  boundary. 
6.  Abandonment.     §  89. 
II.  Revolution.     §  90. 

III.  Internal  development.     §  91. 

IV.  Effects  of  change  of  sovereignty. 

1.  On  boundaries.     §  92. 

2.  On  public  law.     §  93. 

3.  On  revenue  laws.     §  94. 

The  insular  cases. 
De  Lima  r.  Bidwell. 
Downes  '•.  Bidwell. 
Dooley  i'.  United  States. 
Huus  r.  Steamship  Co. 
(ioetze  V.  United  States. 
Fourteen  Diamond  Rings. 
Second  Dooley  ca-^e. 
Divi.«ioii  of  territory. 

4.  On  private  law.     §9."). 

5.  On  pul)lic  obligations.     §  9(). 

6.  On  pu1)lic  deljts.     §  97. 

Kuroi>ean  treaties. 

Spanisli-American  treaties. 

Texas  debt. 

Fiji  debts. 

Hawaiian  deV)t. 

Cuban  debt. 

Spanish  argument. 

American  reply. 

S[)anish  rejoinder. 

.\merican  respon.se. 

Closing  Spanish  argument. 

Extract  from  .\merican  ultimatum. 

7.  On  contracts  and  concessions.     §  98. 

JMiropean  treaties. 

Case  of  ^Madagascar. 

Peace  negotiations  with  Spain. 

Cuban  ca.^es. 

Porto  Rican  cases. 


TABLE    OF    CONTENTS.  XXXIX 

IV.  Effects  of  change  of  sovereignty — Continued. 

7.  On  contracts  and  concessions.     §  98 — Ctjntinued. 

Manila  Railway  Co. 

Cable  concessions. 

Ca.se  of  Pondoland. 

Transvaal  concessions  coniniission. 

8.  On  private  rights.     §  99. 

Judicial  decisions. 
Official  oj)inions. 
Public  offices. 
V.  Territorial  expansion  of  United  States. 

1.  Declarations  of  policy.     §  100. 

2.  Louisiana.     §  101. 
3..TheFloridas.     §102. 
4.  Texas.     §  103. 

Treaty  of  1819. 

Question  of  limits  and  annexation. 
Texan  independence. 
Annexation. 
•5.  Oregon.     §  104. 

6.  California  and  New  Mexico.     §  105. 

7.  The  Mesilla  Valley.     §  106. 

8.  Ala.ska.     §  107. 

T:ka.<eof  1821. 
Treaty  of  cession. 
Boundaries. 

9.  Hawaiian  Islands.     §  108. 

Early  relations. 

Mr.  We])ster's  letter,  1842. 

President  Tyler's  message. 

Action  of  Great  liritain,  1843. 

British-French  declarati(jn. 

French  intervention:  American  position  and  treaty. 

Propo.sed  annexation,  1854. 

Proposals  for  reciprocity,  1855,  18*37. 

Revival  of  annexation  j)roject. 

Reciprocity  treaty,  1875. 

A.«!sertions  of  American  predominance. 

Renewal  of  reciprocity  treaty. 

Pearl  Harbor. 

Constitution  of  1887;  insurrection  of  1889. 

Death  of  Kalakaua;  succession  of  Liliuokalani. 

Overthrow  of  monarchy,  1893;  treaty  of  annexation. 

Withdrawal  of  treaty. 

Proposal  to  restore  the  (2'ieen. 

President  Cleveland's  message,  December  18,  1893. 

Formation  of  constitutional  republic. 

Native  revolt,  January,  1895. 

New  annexation  treaty,  June  1(5,  1897. 

Pretest  of  Japan,  and  its  withdrawal. 

Joint  resolution  of  annexation,  July  7,  1898. 

Transfer  of  sovereignty,  August  12,  1898. 

Provisional  measures;  consular  representation. 

Hawaiian  vessels. 


XL  TABLE    OF    CONTENT!^. 

V.  Territorial  expansion  of  I'liiteil  Slates — Cuiitiinieil. 
i».   Hawaiian  Islaiuls.     §  108 — t'ontiniied. 
Navijiation. 
Quarantint'. 
Imniijiration. 
Chinese. 
ClainiH. 
Presiilent's  message,  1900. 

10.  Spanish  West  Indies  (exeei>t  Cuba),  T'hilippines,  and  (inani.     §  109. 

Message  of  (^leen  Regent,  July  22.  189S. 
President's  reply,  July  .SO,  1H9S. 
Spaliish  note,  August  7,  1898. 
Protocol  of  August  12,  1898. 
Instrui'fions  of  Septein])er  IG,  1898. 
Decision  as  to  the  Philippines. 
Occupation  of  Cuba. 
Isle  of  Pines. 

11.  Tutuila,  and  other  Sanioan  Islands.     §  110. 

Early  relations. 

Meade  agreement;  Pago])ago. 

Steinberger's  mission. 

Treaty  with  the  United  Stiites. 

Treaties  with  (jermany  and  (ireat  Britain. 

American  rights  in  Pagopago. 

Native  disturbances  in  Samoa. 

Hepris:ils  by  (iermany. 

Action  of  the  United  States. 

Washington  conference,  1887. 

Rupture  of  status  (juo. 

Attitude  of  the  United  States. 

Hostilities  between  (jermany  and  Samoa. 

Instructions  to  Admiral  Kimberley. 

President  Cleveland's  message,  January  15,  1889. 

Prince  Bismarck's  assurances. 

Renewal  of  conference. 

(Jeneral  act  of  Berlin. 

DilHculties  in  administration. 

Strife  over  the  kingshij). 

Joint  connnission  of  treaty  powers. 

Report  of  Mr.  Trij))). 

Division  of  the  group. 

Tutuila,  and  the  harbor  <if  Pagopago. 

Titles  to  land. 

12.  Horseshoe  Reef;   Brooks  or  .Midway  Islands. 

Wake  Island.     §  111. 
l.'i.   (iuano  Islands. 

(1)  Legislation  of  Congress.      §112. 

(2)  Conditions  of  apjiurtenaiice.     §llo. 

Discovery. 

Occujiation. 

Executive  action. 

Bond. 
(H)   Rights  of  the  di.«coverer.     §  1 14. 
(4)   List.s  of  islands.     §  11'). 


TABLE    OF    CONTENTS.  XLl 


V.  Territorial  t-xpansiou  of  tht-  I'nited  States — Continued. 
14.   rroi)Osalf<  of  annexation. 

(1)  Canada.     §  11(5. 

(2)  Salvador.     §  117. 

(3)  Cul)a.     §  118. 

(4)  Yucatan.     §  119. 

(5)  Islands  at  Panama.     §  120. 

(6)  Santo  Domingo;  Samana  Bay.     §  121. 

(7)  Islands  of  Culebra  and  Culebrita.     §  122. 

(8)  Danish  West  Indies.     §  123. 

(9)  Mole  St.  Nicolas.     §  124. 


Cn.\PTER    V. 

NATIONAL  JURISDICTION:  TERRITORIAL  LIMITS. 

I.  The  national  domain.     §  125. 
II.  Territorial  limits. 

1.  Artificial  lines.     §  126. 

2.  Mountains  and  hills.     §  127. 

3.  Rivers. 

(1)  Divisional  lines.     §  128. 

(2)  Navigation.     §  129. 

(3)  National  streams.     §  130. 

The  Mississippi. 
The  Hudson. 

(4)  International  streams.     §  131. 

fjiropean  rivers. 

American  rivers:  St.  Lawrence. 

Yukon,  Porcupine,  and  Stikine. 

St.  John. 

Columl)ia. 

Rio  (irande  and  the  Colorado. 

I.,a  Plata,  Parana,  Paraguay,  and  Uruguay. 

Amazon. 

Orinoco. 

African  rivers:  Congo  and  Niger. 

Persian  river — Karun. 

(5)  Diversion  of  waters.     §  132. 

Case  of  the  Rio  (Jrande. 

Niagara  River  and  the  (ireat  Lakes. 

4.  Straits. 

(1)  Divisional  lines.     §  133. 

(2)  Navigation.     §  134. 

Danish  Sound  dues. 
Straits  of  Fuca. 
Straits  of  Magellan. 
The  Dardanelles. 

5.  Interior  seas  and  lakes.     §  135. 


XLTT  TABLE    OF    CONTENTS. 

II.   Territorial  limits — Contimied. 
(i.  Tho  (ircat  Lakes. 

[\ )  .lurisdii'tioii.     §  18H. 
(2)   Fi.shiiig  rights.     §  1:^7. 
(8)  Navigation.     §  188. 

T^kes  Ontario,  Erie,  Huron,  and  Su|ierior. 
Lake  ]Wichigaji. 

(4)  Water  coinniunications.     §  189. 

(5)  Use  of  canaly.     §  140. 

Treaty  stipulations, 
(iuestion  as  to  tolls. 

(6)  Rules  of  navigation.     §  141. 

(7)  Wrecking  privileges.     §  142. 

(5)  Limitation  of  naval  forces.     §  148. 

7.  Marginal  Sea. 

(1)  (ieneral  ]>rinciples.     §144. 

(2)  Position  of  the  United  States.     §145. 

(8)  Discussion  a.s  to  Cuba.     §  14(>. 
(4)  British  act,  1878.     §  147. 

(0)  Case  of  the  Costa  Rica  Packet.     §  148. 

(6)  Rule  as  to  fisheries.     §  149. 

(7)  (Question  of  defensive  power.     §150. 

(8)  Reveinie  acts.     §  15L 

(9)  Proposed  extension  of  marine  V»elt.     §  152. 

8.  Bays.     §  158. 

Delaware  Bay. 
Bristol  Channel. 
Conception  Bay. 
Chesapeake  Bay. 
Buzzards  l?ay. 

9.  Determination  of  boundaries. 

(1)  Political  questions.     §  154. 

(2)  Rights  of  individuals.     §  155. 
(8)   Accretion.     §  15(>. 

(4)  Pri'e<Tii)tion.     §  157. 
IIP   T'.oundaries  of  the  United  States. 

1.  With  the  British  po.sse,s.«ions.     §  158. 

2.  With  Mexico. 

(1)  Ljind  lines.     §  159. 

(2)  Water  lines.     §  1(50. 
8.   The  Philii)pin(>s.     §  161. 

4.  Samoan  Islands.     §  162. 
IV.   Northeastern  Fisheries. 

1.  Treaty  of  17S2-8.      §  1B8. 

"Riglits"  and  "liberties." 

The  fisheries  an<l  the  Mississippi. 

Controversies  of  1S15-1SI8. 

2.  Convention  of  1818.     §  1(54. 

Imperial  act  of  1819. 

Nova  Scotian  "  Hovering  Act,"  188G. 

Que.ition  of  "  bays." 

"Headland"  theory. 

Case  of  the  Waxliiit/fton. 


TABLE    OF    CONTENTS.  XLIII 


IV.  Northeastern  Fisheries — Continued. 

2.  Convention  of  1818.     §  164 — Continued. 

Case  of  the  Argus. 
Strait  of  Canso. 

3.  Reciprocity  treaty,  1854.     §  165. 

Its  termination  and  ensuing  controversies. 
Bait  question. 

4.  Treaty  of  Washington,  1871.     §  166. 

Joint  High  Commission. 
American  instructions. 
Fishery  articles. 
Halifax  award. 
Commercial  privileges. 
Territorial  waters. 
Fortune  Bay  (Sise. 
Termination  of  fishery  articles. 

5.  Controversies  of  1886-1888.     §  167. 

Case  of  the  David  J.  Adams. 
Case  of  the  Everett  Steele. 
Case  of  the  Marion  Grimes. 
Retaliatory  »ct,  1887. 

6.  Unratified  treaty  of  1888.     §  168. 

Modus  Vivendi. 
Subsequent  history. 
V.  Whale  fisheries.     §  169. 
VI.  Seal  fisheries. 

1.  Coasts  of  South  America.     §170. 

2.  Case  of  the  Falkland  Islands.     §  171. 

3.  Bering  Sea.     §  172. 

Ukases  of  1799  and  1821. 

Treaties  of  1824  and  1825. 

Cession  of  Alaska. 

Seizures  in  1886. 

Proposal  of  cooperation,  1887. 

Views  of  Mr.  Phelps. 

Seizures  in  1889. 

Positions  of  Mr.  Blaine. 

Lord  Salisbury's  answer. 

Mr.  Blaine's  contention  as  to  Russian  rights. 

Lord  Salisbury's  offer  of  arbitration. 

Que.stiou  of  "Pacific  Ocean." 

Modus  vivendi. 

Treaty  of  arbitation. 

Question  of  damages. 

Tribunal  of  arbitration. 

Russia's  action  in  1892. 

Award  of  tribunal. 

Damages. 

Regulations. 

British-Russian  arrangement. 

4.  United  States  and  Russian  arbitraHon.     §  173. 

Diplomatic  corr«si)OBdence. 
Award. 


XLIV  TABLE    OF    CONTENTS. 

VII.  Vcpsels.  §  174. 
Ai'ts  at  sea. 
Piracy. 

Acts  in  forcii;!!  wati-is. 
Civil  liabilities  on  American  vessels. 
Guano  Islands. 


Ch.\pter  VI. 
NATIONAL  JURISDICTION:  ITS  LEGAL  EFFECTS. 

I.  Supremacy  of  territorial  sovereign. 

1.  Jurisdiction. 

(1)  The  nation's  absolute  and  exclusive  ri^ht.     §  175. 

(2)  Division  of  authority.     §  ]7ti. 

(3)  Servitudes.     §  177. 

(4)  Neutralization.     §  178. 

2.  (Tovernniental  acts.     §  179. 

3.  Legislative  power. 

(1)  Rights  of  property.     §180. 

(2)  Industrial  projjerty.     §  181. 

(3)  International  copyright.     §  182. 

(4)  Taxation.     §  183. 

Power  of  taxation. 
Income  taxes. 
War  taxes. 

(5)  Customs  laws.     §184. 

Discriminating  duties. 
(ti)  Monopolies.     §  185. 
4.   Legal    remedies. 

(  1 )  Competence  of  tribunals.     §  186. 

Convention  with  France,  1778. 

Suits  by  foreign  .sovereigns. 

(2)  RegtUation  of  procedure.     §  187. 

( ieneral  principles. 
Sjx'cial  U'gislation. 
Pnjtocol  with  Spain,  1877. 

(3)  Kxecutiun  of  foreign  judgmi'nts.     §  188. 

(4)  Letters  rogatory.      §  189. 

Law  ill  the  Ciiited  States.     ' 

Civil  cases. 

( 'riiniiial  cases.    • 

l^xw  in  foreign  countries: 

.\ustriaaiid  Hungary;  Piclginm;  P)razi];  ('bile;  China; 
Colombia;  Denmark;  France;  <iermany;  Great 
Uritain;  Hawaii;  Italy;  Mexico;  Netherlands; 
Russia:  Sweden  and  Norway;  Switzerland;  Venez- 
uela. 


TABLE    OF    CONTENTS.  XLV 

I.  Supremacy  of  territorial  sovereign — Continued. 

5.  Poiict'  an<l  otlier  regulations. 

(1)  Display  of  foreign  flag.s.     §190. 

Oftieial  display. 
Unofficial  display. 

(2)  Quarantine.     §  191. 

(Teneral  principles. 

Question  of  national  and  State  control. 

(3)  Pilotage.     §  192. 

(4)  Freedom  of  speech  and  (jf  the  press.     §  193. 

(5)  Religious  freedom.     §  194. 

(6)  Learned  professions.     §  195. 

6.  Martial  law.     §  196. 

Military  law. 
Martial  law. 

Ca.ses  in  the  United  States. 
Protocol  with  Spain,  1877. 
Uprising  in  Hawaii,  1895. 
Ca.se  of  Waller. 
II.  Territorial  operation  of  laws. 

1.  Municipal  legislation.     §  197. 

2.  Judicial  decisions.     §  198. 

3.  Questions  of  international  right.     §  199. 

III.  Extraterritorial  crime. 

1.  Miscellaneous  opinions  and  ca.ses.     §200. 

2.  Cutting's  case.     §  201. 

3.  Legislation  and  judicial  decisions.     §  202. 

IV.  Jurisdiction  over  ports. 

1.  Entrance  of  foreign  vessels.     §  203. 

2.  Jurisdiction  over  merchant  vessels. 

(1)  Application  of  local  law.     §  204. 

(2)  Questions  of  internal  order  and  discipline.     §  205. 

(3)  Authority  of  consuls.     §  20«. 

Treaties  and  legislation. 

Treaties:  Austria-Hungary,  July  11,  1870,  Art.  XL 

Belgium,  March  9,  1880,  Art.  XL 

(Termany,  December  11,  1871,  Arts.  XI L,  XIIL 

Italy,  May  8,  1878,  Art.  XI. 

Sweden  and  Norway,  1827,  Art.  XIIL 

3.  Protests  against  (jnerous  exactions.     §  207. 

Fines,  taxes,  ami  .seizures. 
Custody  of  ship's  papers. 

4.  Involuntary  entrance  as  ground  of  exemption.     §  208. 

Judicial  decisions. 
Official  opinions. 
Cases  of  Comd  and  Eiicoin'mm. 
Cases  of  Enlerj)ri<f  and  Jlrrmosd. 
Ca.^^e  of  the  Crealr. 

Decision  in  cases  of  Enlrrprlxf,  Heruiom,  and  Creole. 
Case  of  the  York. 
V.   Inviolability  of  Territory. 

1.  Rule  of  inviolability.      §209. 

2.  Breaches  1)V  militarv  an<l  naval  authorities.     5  210. 


XLVI  TABLE    OF    CONTENTS. 

V.  Inviolability  of  Territory — Continued. 

0.  Breaches  ])y  eivil  anthuritiea.     §  211. 

4.  Breaches  l)y  })rivate  persons.     §  212. 

5.  Permission  for  passage  of  foreign  forces.     §  213. 

Circumstances  of  necessity  or  convenience. 
International  exhibitions. 
Social  occasions. 
(2u»stions  of  control. 

6.  Landing  of  forces  for  i)rotection  against  violence.     §  214. 

7.  Plea  of  necessarj'  self-defense. 

(1)  Invasfions  of  West  Florida.     §  215. 

(2)  Amelia  Island.     §  216. 

(3)  IX'struction  of  the  Chroliuc.     §  217. 

(4)  l?om])ardment  of  Greytown.     §  218. 

(5)  Pursuit  of  predatory  Indians  and  other  marauders.     §  219. 
S.  State  aided  and  compulsory  emigration.     §  220. 

VI.  Duty  to  restrain  injurious  agencies. 

1.  Repression  of  criminal  or  hostile  acts.     §  221. 

2.  Indians  and  other  marauders. 

(1)  Indians.     §  222. 

(2)  Other  maraudeKS.     §  223. 

3.  Unneutral  acts.     §  224. 

4.  Unauthorized  or  counterfeit  money.     §225. 

5.  (Question  as  to  running  water.     §  22t). 
VII.   Landing  of  submarine  cables.     §227. 

VIII.  International  cooperation. 

1.  Prevention  of  the  slave  trade.     §  228. 

2.  Restriction  of  traffic  in  firearms  and  liijuor.     §  229. 

3.  (ieneva  and  Hague  conventions.     §230. 

4.  Rules  of  navigation.     §  231. 

5.  Protection  of  submarine  calAes.     §  232. 

6.  Otlier  subjects  of  cooperation.     §  233. 
IX.   Marriage. 

1.  As  an  institution.     §  234. 

2.  Matrimonial  cai)acity.     §  235. 

3.  Solemnization. 

(1)  Consensual  marriages.     §  23(). 

(2)  Law  of  place  generally  governs.     §  237. 

(3)  (Question  of  extraterritoriality.     §  238. 

(4)  Limitations  of  diplomatic  privilege.     §  231>. 

(5)  Functions  of  consuls.     §  240. 
(())  CertiMcates  of  law.     §241. 

4.  I^iws  of  various  countries. 

(1)  .Vrgentine  Republic.     §242. 

(2)  Belgium.     §  243. 

(3)  France.     §  244. 

(4)  (n-rmany.     §  245. 

(5)  Italy.     §  24(1. 
(»j)  Peru.     §  247. 

(7)  Rus^■ia.     §  248. 

(8)  Switzerland.     §  249. 


TABLE    OF    CONTENTS.  XLVII 


CllAITEK    VII. 

EXEMPTIONS  FROM  TERKITORIAL  JURISDICTION. 

I.  Foreign  sovereigns. 

1.  Their  i)er.S()ns.     §250. 

2.  Military  furces.     §  251. 

Individual  officers  luid  men. 
8.  Vessels  of  war. 

(1)  Their  puhlie  charaeter  and  its  proof.     §  252. 

(2)  Entrance  into  friendly  ports.     §  25)!. 

(3)  Exemptions  from  local  authoi'ity.     §  2o4. 

Opinions  of  publicists. 
Development  of  doctrine. 
Question  as  to  unneutral  acts. 
Supplies. 

(4)  Police  regulations.     §  255. 

(5)  Otllcers  and  crews. '    §  256. 

4.  Otlier  public  vessels.     §  257. 

5.  Other  })ul)lic  property.     §  25S. 
II.  Extraterritorial  jurisdiction. 

1.  (ieneral  })rinciples.     §259. 

2.  Nationality,  as  a  limitation.     §  2()0. 

Defendant. 
Plaintiff. 
Witness. 
;i  Jurisdiction  over  seamen.     §  261. 

4.  Exercise  of  judicial  functions. 

(1)  Legislation  of  United  States.     §262. 

(2)  Power  to  make  regulations.     §  263. 

(3)  Conduct  of  i)roceedings.     §  264. 

Official  competency. 
Mode  of  trial. 
Em})loyment  of  marshals. 

(4)  Civil  jurisdiction.     §  265. 

articular  subjects. 
Appeals  to  United  States. 

(5)  Criminal  jurisdiction.     §  266. 

Its  scope. 
Extradition. 
Imprisonment. 
Clemency. 

5.  End,  or  suspension,  of  privileges. 

(1)  Change  of  SI  )vereignty.       §267. 

(2)  Leased  territories  in  China.     §  268. 
(.3)  Effect  of  martial  law.     §  2()9. 

6.  China. 

(1)  Establishment  of  extraterritorial  privileges.     §270. 

(2)  United  States  treaties.     §  271. 


XLVTII  TAHLK    OK    CONTENTS. 

11.   Kxtnitcrritorial  jurisdiction — Cuntimu'd. 
().  ("liiiia — ("oiitimied. 

(0)  Ro«,'ulati()iis.     §  272. 

(4)  Shaii<,diai  iminicii>al  ordinances.     §  278. 
{'■>)  Prevention  of  opium  trade.     §  274. 
(6)   Mixed  court  at  Slianghai.     §  27o. 

7.  Japan. 

(1)  Police  powers.     §276. 

(2)  Municipal  odicer  at  Yokoiiania.     §277. 
(*)   Municipal  ordinances  at  Nagasaki.     §278. 

(4)  Kxpulsion  of  convicts.     §279. 

(5)  Warehouse  regulations.     §280. 

(())   Abolition  of  extraterritoriality.     §281. 

8.  Morocco  and  other  Barbary  powers.     §  282. 
\K  Turkey. 

(1)  Origin  and  extent  of  extraterritoriality.     §  288. 

(2)  Art.  IV.,  treaty  of  1830.     §  284. 

Notes  l)y  Messrs.  Davis  and  Adee. 

lieport  ])y  Mr.  Dainese,  1852. 

Report  by  ^Ir.  Brown,  1857. 

Views  of  Mr.  Cass,  1859. 

Position  of  Mr.  Fish,  1869. 

Case  of  Kelly,  1877. 

Mirzan's  case,  1879. 

Correspondence  of  1884-1889. 

Case  of  Proios. 

Gurdjian's  ca.«e,  1890;  Mr.  Blaine's  offer. 

Report  of  .Air.  Olney,  1895. 

Correspondence  of  1900-1901. 

(3)  Practice  of  European  powers.     §  285. 

Au.«tria-Hungary. 

(Jerniany. 

Great  Britain. 

Italy. 

TVie  Netherlands. 

Portugal. 

Switzerland. 

(4)  Mixed  courts  in  Kgypt.     §  286. 

Their  jurisdiction,  and  its  lin!itation.s. 
10.   Practice  of  protection. 

( 1 )  Policy  of  United  States.     §  287. 

(2)  Ottoman  dominions.     §288. 

(ieneral  rules. 

Native  employees  of  consulates. 

Question  as  to  native  teachers. 

(3)  Morocco.     §  289. 

(4)  Consular  jurisdiction.      §290. 
III.   Questions  of  asyium. 

1.  The  ••right  of  asylum."     §291. 

2.  Ivirly  diplomatic  privileges,  and  their  decadence.     §  292. 

3.  Survivals  of  asylum  in  Kurope.     §293. 

4.  I)ii>]omatic  asylum  in  international  law.     §  294. 


TABLE    OF    CONTENTS  XLIX 


III.  Quest'ons  of  as^ylum — Continued. 

5.  Asylum  in  .\iuerifa. 

( 1 )  Bolivia.     §  2t»o. 

(2)  Central  AniericHn  States.     §  296. 
(8)  Chile.     §  297. 

(4)  Colombia.     §298. 

(0)  Ecuador.     §  299. 

(6)  Hayti  and  Santo  DonunfTO.     §300. 

(7)  Me.xico.     §  SOI. 

(8)  I'araguay.     §  302. 

(9)  Peru.     §  303. 

(10)  Venezuela.     §  304. 

6.  Asylum  in  vessels. 

(1)  Ships  of  war.     §  305. 

(2)  Merchant  vessels.     §  306. 

(3)  Passengers  in  transit.     §  307. 


Chapteh  VIII. 

THE  HIGH  SEAS. 

I.  The  term  "  high  seas."     §  308. 
II.   Freedom  of  the  seas. 

1.  Prohihition  of  vi>:it  and  search  in  time  of  peace.     §  309. 

Judicial  decisions. 

Incidents  and  declarations,  1811-1872. 

Case  of  the  Mryiiuni^,  1873. 

Incidents  of  1880-81. 

Alllanrd  case,  1895. 

Case  of  the  Wlllldni  To'hl,  1S96. 

Rights  of  cruiser  of  ship's  own  nation. 

Mode  of  visit. 

2.  Slave  trade.     §  310. 

English  j)ri7.e  doctrine,  1810-1813. 
Case  of  Le  Louix,  1817. 
Case  of  the  Ardclope,  1825. 
Treaty  of  Ghent,  and  subsecjuent  discussions. 
Act  of  1820,  and  subsequent  negotiations. 
The  quintuple  treaty. 
Webster-A,shburton  treaty. 
Briti.sh  renunciation  of  visit  and  search,  1858, 
Senate  re.solution,  1858. 
Convention  with  (Jreat  Britain,  1862. 
General  act  of  Brussels,  1890. 
3.  Piracy. 

(1)  Nature  of  the  offense.     §  311. 
Definitions. 

Legislation  and  decision.s. 
Kidnapped  pei-sonH. 
Hostile  enterprises;  ease  of  the  Virgmma, 

H.  Doc.  551 IV 


L  TABLE    OF    CONTENTS. 

II.  Freedom  of  the  8eas — Contiiiueil. 
'.i.  IMrai-y — Continued. 

(2)  Judieial  proceed inj^s.     §  .'512. 

(.'5)  Salvajje.     §  :u:i. 

(4)  Captures  by  privateers.     §  ;^14. 

Justilied  by  beilijjereut  coniiiussion. 
Al)use  or  invalidity  of  eoniinisHion. 
(^ue^*tions  a.s  to  nationality  of  crew. 
rncoinn.i.ssioned  cruisers. 

4.  Self-defense.     §  ;^ir>. 

Case  of  the  Deerhnmul. 
Ca.«e  of  the  Mrgutins. 
Case  of  the  Mnri/  Loirell. 

5.  (Question  of  hot  pursuit.     §  .'JKJ. 

III.  Claim  of  impressment. 

1.  Its  a.ssertion  and  denial.     §  317. 

2.  Case  of  <  'lieKiipeakr  and  Leojxird.     §  318. 

3.  War  of  1812.     §  319. 

4.  Subsetjuent  correspondence.     §  320. 

IV.  Nationality  of  vessels. 

1.  Evidence  of  the  Hasi.     §  321. 

2.  Re<ristry.     §  322. 

3.  American-owned  foreign-built  vessels. 

{ 1 )  Rifrht  of  protection.     §  323. 
(2)   Jurisdiction.     §  324. 

4.  Passports  and  sea  letters.     §  325. 

5.  Arming  of  merchant  vessels.     §  32(i. 
().  Utiicers.     §  327. 

7.   Loss  of  right  to  protection.     §  328. 
V.   Vessels  controlled  by  insurgents. 

1.  Cases  and  opinions,  177(5-18(K).     §  :!2!). 

2.  Civil  war  cases.     §  330. 

3.  Cases  and  opinions,  18()5-1S84.     §331. 

4.  Colond>ian  insurrection,  1885.     §  332. 

5.  Revolution  in  Chile,  1891.     §  33.3. 

6.  Naval  revolt  in  I5razil,  1893-94.     §  334. 

7.  Cases  and  opinions,  1899-1902.     §  335. 


Cm.\itei{  IX. 

INTEROCEANIC  COMMUNICATIONS. 

I.   Early  declarations  of  American  policy.     §  336. 

Instructions  to  delegates  to  Panama  Congress, 
.Senate  res(jlution,  18.35. 
Hou.«e  resolution,  1839. 
Duty  of  local  sovereign. 


TABLE    OF    CONTENTS,  LI 

II.  Isthmus  of  Panama. 

1.  Article  XXXV.,  treaty  of  1846.-    §  337. 

(1)  President  Polk'.s  message.     §338. 

(2)  Subsequent  acts  and  interpretations.     §  339. 

(3)  Negotiations  of  1856-57.     §  340. 

(4)  Negotiations  of  1868-1870.     §  341. 

(5)  Negotiations  of  1881.     §  342. 

2.  Guaranty  of  neutrality  and  sovereignty.     §  343. 

3.  Guaranty  of  free  and  open  transit. 

(1)  Domestic  disturbances.     §344. 

Panama  riot,  1856. 
Subsequent  discussions. 
Insurrection  of  1884-85,  and  after. 
The  Republic  of  Panama,  1903. 

(2)  Passports.     §  345. 

(3)  Transit  of  the  mails.     §  346. 

(4)  Taxation  and  commercial  regulations.     §  347. 

Tonnage  taxes. 
Capitation  tax. 

(5)  Transit  of  troops.     §348. 

(6)  Fugitives  from  justice.     §  349. 

(7)  Telegraphic  communication.     §  350. 
III.  Clayton-Buhver  treaty. 

1.  The  treaty  and  its  antecedents.     §  351. 

2.  Variant  interpretations. 

(1 )  Belize,  or  British  Honduras.     §  352. 

(2)  Ruatan,  and  other  Bay  Islands.     §  353. 

(3)  Mosquito  protectorate.     §  354. 

Mr.  liuchanan's  instructions  to  Mr.  Hise. 
Action  of  Mr.  Claytou. 
Webster-Crampton  arrangement. 
Position  of  31  r.  Marcy. 
Buchanan-Clarendon  negotiations. 

3.  Historical  summary,  1851-1858.     §  355. 

4.  Arrangement  of  1858-1860.     §  356. 

5.  Mr.  Seward's  course.     §  357. 

Suggestion  as  to  Tigre  Island. 

Treaty  with  Nicaragua,  1867,  and  other  treaties. 

6.  Negotiations  of  Mr.  Fish.     §  358. 

Circular  of  1877. 

7.  Messages  of  President  Hayes.     §  359. 

8.  Discussions  of  1881-1883.     §  360. 

9.  Frelinghuysen-Zavala  convention.     §  361. 

10.  President  Cleveland's  message,  1885.     §  362. 

11.  Executive  utterances,  1889-1894.     §  363. 

12.  Mr.  Olney's  memorandum,  1896.     §  364. 

13.  Recommendations  by  President  McKinley.     §  365. 

14.  Hay-Pauncefote  treaty,  1901.     §  366. 

Treaty  of  Feb.  5,  1900. 

Negotiation  as  to  amendments. 

Treaty  of  Nov.  18,  1901. 

Message  of  President  Roosevelt. 

Resolution  of  Second  International  American  Conference, 


LII 


TABLE    OF    CONTENTS. 


III.  Clayton-BulwiT  treaty — (outimunl. 

15.   Mo.^iiiito  i|uesti()n,  s'nuv  IStJO.     §  .St57. 
Iiif^tnu'tions  of  ^Ir.  Fi.wli,  lS7o. 
Awanl  of  Kinperor  of  Austria,  ISSl. 
Mr.  Bayard's  n'j)resi'ntations. 
Lord  Salisl)ury'.<  n-jtly. 
Mr.  Fost(''r'>'  ri'pn'.st'iitatioiis. 
Insurrection  of  lSi»4,  and  siil)se<iuent  event^ 

IV.  .\nieriean  routes  and  jrrants.     §  o<)8. 
V.  Suez  Canal.      §  .SH9. 

VI.  Corinth  Canal.     §  ;i70. 
VII.  Kiel  Canal.     §  371. 


Chaitek  X. 


NATIONALITY. 


I.  Sources  of  nationality.     §  o72. 
II.  Citizenship. 

1.  By  hirth. 

(1  I   By  ri-rht  of  place.     §  373. 
(2)   By  ri<,'ht  of  hlood.     §  374. 

2.  By  naturalization.     §  375. 

3.  By  revolution.     §  37(). 

III.  Naturalization. 

1.  [.ejrislative  an<l  conventioTial  rejrulation.     §377. 

2.  Voluntary  individual  action.     §  37S. 

3.  Collective  naturalization. 

(1)  By  jKtlitical  incorporation.     §379. 

Louisiana  cession. 

Florida  treaty. 

Annexation  of  Texas. 

Annexation  of  Hawaii. 

Porto  Kico  and  the  I'hilipjiines. 

(2)  Provisions  for  indiviilual  election.     §  380. 

Treaty  of  Cuadalupe-IIidaljro. 
Alaskan  cession. 
Treaty  of  Fratikfort. 
Treaty  with  Spam,  ISilS. 

IV.  American  naturalization. 

1.  Ke<rulated  l)y  Conorress.     §  381. 

2.  Committed  to  the  courts.     §  382. 

3.  Persons  capable  of  naturalization.     §  383. 

4.  I'sual  le<:al  conditions.     §  384. 

5.  Declaration  of  intention. 

( 1  )   Csual  requirement.     §  385. 
(2)   p:xceptions.     §  38(J. 

Immij:ration  durini:  minority. 

Service  in  .\rmy. 

Service  m  Navy  or  Marine  Corpa. 

Spcci^i  case  in  Hawaii. 


TABLE    OF    CONTENTS.  LIII 

IV.  American  naturalization — Continued. 

5.  Declaration  of  intention — Continued. 

(3)  Does  not  confer  citizen.«hii).     §  387. 
Judicial  decision.-^. 
Executive  action. 
Cases  of  Italians. 

6.  Residence. 

(1)  Five  years'  rule.     §388.       . 

Meaninjr  of  "continued  term." 

(2)  Exceptions.     §  .'589. 

Seamen. 

Service  in  .\rmy. 
V.  Conventional  arrantrements. 

1.  Treaties  with  the  (iernian  States. 

(1)  Negotiations.     §  390.  • 

(2)  Conditions  of  chanire  of  alle.iriance.     §391. 

(3)  Question  as  to  Alsace-Lorraine.     §  392. 

(4)  Practice  of  expulsion.     §  393. 

(5)  Operation  of  treaties.     §  394. 

2.  Belgium.     §  395. 

3.  Sweden  and  Xorway.     §  396. 

4.  <Treat  Britain.     §  397. 

5.  Austria-Hungary. 

(1)  Conditions  of  change  of  allegiance.     §398. 

(2)  Practice  of  expul.«ion.     §  399. 

6.  Denmark;    Ecuador.     §  400. 
VL   Naturalization  not  retroactive. 

1.  ( ieneral  jiriciples.     §401. 

2.  (iernian  treaties. 

(U  Military  cases.     §  402. 

(2)  Statutes  of  hmitation.     §403. 

3.  Anstro-IIungarian  treaty.     §  404. 

4.  Belgian  treaty.     §  405. 

5.  Danish  treaty.     §  40(). 

6.  Treaty  witli  Sweden  ami  Norway.     §  407. 
VIL   Nati(jnality  of  married  women. 

1.  Marriage  of  American  women  to  aliens. 

(1)  Effect  on  status.     §  408. 

(2)  Reversion  of  nationality.      §  409. 

2.  Marriage  of  ahen  women  to  .\mericans. 

(  1  )   .American  law.     §  410. 

(2)   Reversion  of  natifniality.     §411. 

3.  Law  111  otiicr  countries.     §  412. 
\"11L    Effect  of  parents'  naturalization  on  infants. 

1.  American  law.     §  413. 

2.  Marriage  ol  alien  widow  to  American      §  414. 

3.  .\doption  of  children.     §415 

IN.   Naturalization  internationally  ineffective  as  to  ahsent  family. 

1.  Married  women.     §  41(). 

2.  Infants.     §  417. 

3.  Good  otlice.s  tor  emigration.     §  418. 


LrV  TABLE    OF    CONTENTS. 

X.   Proofs  of  nationality. 

1.  Kvidt'Mcos  of  oitizenshiji.     §419. 

2.  Proof  of  naturalization. 

( 1 )  The  judicial  record.     §  420. 

(2)  Ivoss  or  destruction  of  record.     §  421. 

Question  of  fact. 

Practice  of  Department  of  .^tatd 

3.  Inipeaclinient  of  naturalization. 

(1)  Rules  of  niunicii)al  court.«.     §422. 

(2)  Rule  of  international  action.     §  42.'». 

Repudiation  of  naturalization  iiiiproiM-rly  obtained. 

(3)  Authority  to  make  decision.     §  424. 

(4)  Disposition  of  fraudulent  certificutes.     §  42o. 
XI.  Doulile  allegiance. 

1.  Poreijrn-horn  children. 

(1)  Act  of  1855.     §  428. 

(2)  Particular  applications  of  princi{)le.     §  427. 

2.  Xative-l)orn  chil<lren. 

(1)  Double  allegiance  at  birth.     §428. 

(2)  Change  of  parents'  nationality.     §  429. 

3.  P^lection  at  majority.     §  430. 
XII.  Question  of  expatriation. 

1.  Connnon-law  doctrine.     §  431. 

2.  Judicial  decisions. 

(1)  Prior  to  1868.     §  432. 

(2)  Since  1868.     §  4.33. 

3.  Governmental  doctrine. 

(1)  Executive  declarations  down  to  1845.     §  434. 

(2)  Mr.  Buchanan's  assertion  of  unqualilietl  right.     §  4;i5. 

(3)  Reversion  to  earlier  doctrine.     §  436. 

(4)  Kea.ssertion  of  un<iualified  right,  1857-1861.     §  437. 

(5)  Course  during  civil  war.     §  438. 

(6)  Act  r.f  1868.     §  439. 

(7)  Snbse(iuent  statements.     §  440. 

4.  Law  of  particular  countries. 

(1)  China.     §  441. 

(2)  France.     §  442. 

(3)  (iermany.     §  443. 

(4)  Greece.     §  444. 

(5)  (iuatemala.     §445. 

(6)  Italy.     §  446. 

(7)  Morocco.     §  447. 

(8)  The  Xetherlands.     §  448. 

(9)  Xicaragua.     §  449. 
(10)   Persia.     §  450. 
(in   P<.rtugal.     §  451. 
(12  I   Roumania.     §  452. 

(13)  Russia.     §  453. 

(14)  Servia.      §  454. 

(15)  Spain.     §  455. 

(16)  Switzerland. 

(a)  Swiss  law  of  1876.     §  456. 

(b)  Diplomatic  discussions.     §457. 

(c)  Futile  conventional  neg<ttiations.     §458. 


TABLE    OF    CONTENTS.  LV 


XII.  Question  of  expatriation — Continued. 

4.   Law  of  particular  countries — Continued. 

(17)  Turkey. 

(a)  Law  of  18(59.     §  459. 

(1>)  Bureau  of  nationality.     §  400. 

(c)  Diplomatic  controversies.     §  461 

(d)  Penalties  and  petitions.     §  4(52. 

(e)  Expulsion  cases.     §468. 

(f)  Unratifie<l  treaty  of  1874.     §464. 

(18)  Venezuela.     §  465. 

XIII.  Modes  of  expatriation. 

1.  .Vets  held  to  effect  expatriation.     §466. 

2.  Acts  held  not  to  effect  expatriation.     §  467. 
•S.  ( )aths  of  allegiance.     §  468. 

4.   Military  service.     §  469. 

XIV.  Renunciation  of  naturalization. 

1.  General  principles.     §  470. 

2.  (ierman  treaties.     §  471. 

.S.  Treaty  with  Ecuad(jr.     §  472. 
4.  Treaty  with  Denmark.     §  473. 
XV.  Lf)ss  of  right  to  national  protection. 

1.  Foreign  domicil. 

(1)  Native  citizens.     §474. 

(2)  Naturalized  citizens.     §  475. 

(3)  American  Inisiness  interests.     §  476. 

(4)  Reasons  of  liealth.     §477. 

(5)  Residence  in  Oriental  lands.     §  478. 

2.  Office  holding.     §  479. 

3.  Taking  jiart  in  politics.     §  480. 

4.  rnneutral  conduct.     §  481. 

5.  Fugitives  from  justice.     §  482. 

().   QnestiDii  of  matriculation.     §  483. 
XVI.   Seamen.      §  484. 
XVII.   ('()ri)orations.      §485. 
XVIIl.  Care  of  indigent  citizens.     §486. 


Ch.\ptkr  XI. 
BOMICIL. 

I.   \  source  of  civil  status.     §  487. 
II.   lielligerent  domicil.     §488. 

III.  Thrasher' s  case.     §  489. 

IV.  The  Kosztaca.«e. 

1.  ^[arcy-IIidsemann  correspon<lence.     §  490. 

2.  liiteri)retations.     §  491. 


LVI  TABLK    OF    CONTENTS. 


CHAITEK    XII. 

PASSPORTS. 

I.  Natiire  and  functions.     §  492. 
II.   Aiitliority  t<i  issuf. 

1.  In  tlu-  TnitiMl  States.     §  493. 

2.  In  fnreijrn  count rics.      §  494. 

III.  To  whom  issiH'il. 

1.  Issuance  forl)i<l<len  to  any  luit  citizens.     §  49o. 

2.  Inliabitants  of  annexe<l  or  occnpied  territory.     §  49»). 
.S.   Indians.     §  497. 

4.  Per.<ons  of  color.     §  49S. 

5.  Persons  included  in  ]ia.<sjMirt.     §  499. 
t).   Women.     §  ."HW. 

7.  Minor  children.     §501. 

8.  Declaration  of  intention.     §  502. 

IV.  Applications. 

1.  Forms  and  evidence.     §  50.3. 

2.  Native  citizen.*.     §  504. 

3.  Naturalized  citizens.     §  505. 

4.  Citizenshi])  throujrh  jiarent's  naturalization.     §  50<]. 

5.  Evidence  of  previous  passi)ort.     §507. 
(1.  Oath  of  alle^dance.     §  508. 

7.  Name  of  apjilicant.     §  5051. 

8.  Titles.  iKirsional  or  otlicial.     §510. 

9.  Fees.      §  511. 
V.   (irounds  of  refusal. 

1.  Discretion  as  to  issuance.     §512. 

2.  Renunciation  of  allejriance.     §513. 

3.  Kffect  of  foreign  domicil  or  residence.     §  514. 

4.  Foreign  residence  of  citizens  by  birth. 

(1  )   I'ersons  born  in  the  Tnited  States.     §  515. 
(2)  Persons  born  abroad.     §  51  (i. 

5.  Foreign  residence  of  naturalized  citizens. 

(  1  )   In  country  of  origin.     §  517. 
(2)   In  third  country.     §  518. 
<).  Statement  as  to  intention  to  n-turn.      §  519. 

7.  Connection  with  .\merican  business  interests.      §  520. 

8.  Missionaries.     §  521. 

9.  F.ffect  of  extraterritoriality.      §522. 
VI.   Duration  of  ]ta.s«ports. 

1.  Time  limit.      §  52.>. 

2.  Cancellation.     §  524. 
VII.   International  effect. 

1.  Evidential  force      §  525. 

2.  Vise.     §  52tj. 

3.  False  use.     §  527. 


TABLE    OF    CONTENTS.  LVII 


VIII.  Special  jiaj^sports.     §  52S. 
IX.  Loi-al  papers. 

1.  European  countries.     §  529. 

2.  American  countries.     §  580. 
8.  China.     §  5.S1. 

X.   War  regulations. 

1.  American  civil  war.     §582. 

2.  Other  cases.     §  5.88. 


Chaitkr  XIII. 

ALIENS. 

I.  Rights  and  dntie.s. 

1.  Personal  protection.     §  584. 

2.  l*ro])erty  rights.     §  585. 

8.  Judicial  remedies.     §  58(). 

4.  Submission  to  the  laws.     §  587. 

5.  Pani)ers  and  in.sane.     §  5.88. 

6.  Corjiorations.     §  589. 

7.  Taxation.     §  540. 
II.  Disabilities. 

1.  Exclusion  from  privileges.     §  541. 

2.  Registration.     §  542. 

8.  Communication  with  foreign  governments.     §  548. 

III.  Regulations  as  to  real  property. 

1.  )>aw  in  the  Ignited  States. 

(1  )  Conunon  law,  and  statutes.     §  544. 
(2)  Treaty  stipulations.     §  545. 

2.  Law  in  other  countries.     §  546. 

(ireat  IJritain;  Japan;  Mexico;  Persia;  Russia;  Turkey. 

IV.  iVIilitary  service. 

1.  Voluntary  enlistments.     §  547. 

2.  Comj)ulsory  service.     §  548. 

8.  Military  tax;  treaty  with  Switzerland.     §549. 
V.   Expulsion. 

1.  ( leneral  principles.     §550. 

2.  Protests  against  arbitrary  action.     §  551. 
8.  S]»ecial  discriminations. 

(1)  On  ground  of  race.     §552. 

(2)  Of  i)rofession — missionaries.      §  558. 
(8)  Of  creed — Jews  in  Russia.     §554. 

(4)  Jews  in  Palestine.     §  555. 

(5)  Mormons.     §  55(). 

4.  I"'.xtraterritorial  countries. 

(1)  Treaty  with  Jai.an,  1858.     §557. 

(2)  Turkey.     §  5.58. 

5.  War  measures.     §  559. 


LVIIT  TABLK    OF    CONTENTS. 

VI.  Control  of  iiuinigration. 

1.  C'omjnilsory  or  assisted  emigration.     §560. 

2.  Power  to  regulate  immigration.     §561. 
'A.   Legislation  of  the  United  States.     §  5()li. 

4.  Jutlieial  decisions.     §  568. 

5.  C'<nitraet  laborers.     §  564. 

6.  Conviet.-^.     §  565. 

7.  Seamen.     §  566. 
VII.   Exelusion  of  Chine.se. 

1.  Treaty  of  1S80.     §  567. 

2.  Legislation,  iaS2-18i«.     §  56S. 

3.  Treaty  of  1S94.     §  5()i». 

4.  Legislation,  18i»4-1905.     §  570. 

5.  Exenij>t  classes. 

(1)  Persons  inclnded.     §  57L 

(2)  Certificates.     §  572. 

6.  Excluded  cla.sses. 

(1 )  Persons  included.     §  573. 

(2)  Certificates  of  residence  and  reentry.     §574. 

(3)  Privilege  of  transit.     §  575. 

(4)  Deportation.     §  576. 

(5)  Discussion  as  to  the  Philippines.     §577. 

(6)  Projtosals  <»f  coo])eration.     §  57S. 


CUAPTEH    XIV. 

EXTRADITION. 

I.   f>xtradition  a  national  act.     §  571t. 
11.   Extradition  without  treaty. 

1.  (^ue.-'tioii  of  obligation.     §  5S0. 

2.  Question  of  legal  power.      §  5S1. 

3.  KiMjuests  on  grounds  of  courtesy.      §  5,S2. 

4.  Delivery  of  fugitives  to  Cnited  Stat<'s.     §  5«3. 

5.  Inmiigration  acts.     §  5,s4. 

6.  Extraterritorial  jurisdiction.      §  585. 
T.   Canailian  act.  188it.      §586. 

S.  Removal  of  Indians.      §  587. 

n.  Occujiied  territory.      §588. 
III.    Treaties. 

1.  Rules  of  construction.      §  58!l. 

2.  I^'gislation.     §  .">«»(). 

3.  Interpretation  of  terms — particular  offenses.     §  59L 

4.  Eorgf'ry.      i;  5!t2. 

5.  .Furisilictioii.      §  iSU'A. 

Term  ■' juris<liction." 

( 'oucurrent  jurisdiction. 

Vessels. 

Term  '"territories." 

"Fugitives  from  justice." 


TABLE    OF    CONTENTS.  '        LiX 


iV.  Citizens. 

1.  Of  the  country  of  refuge.     §  594. 

2.  Ol  a  third  country.     §  595. 
V.  Limitation.s  as  to  trial. 

1.  Winsh)\v  case.     §  596. 

2.  Ilauscher  ca.se.     §  597. 

8.  Particular  a[)plications.     §  598; 

4.  Included  offenses.     §  599. 

5.  Judicial  remedies.     §  HOO, 

6.  (^uegtion  of  consent.     §  601. 

7.  Civil  suits.     §  602. 

VI.  Irregular  recovery  of  fugitive.     §  603. 
VII.  Political  offenses.     §  »)04. 

Crimes  against  i)oHtical  persons. 
VIII.  Kequisitions. 

1.  (ieneral  rules.     §  t)05. 

2.  Apjjlications  for  requisitions.     §  606. 
IX.  Mandate.     §  607. 

X.  Proce<Uire. 

1.  Magistrates.     §  608. 

2.  Complaint.     §  60&. 

3.  Arre.st.     §  610. 

Second  arrest. 
Provisional  detention. 
XI.  pA-idence. 

1.  Documentary  jiroofs.     §  611. 

2.  AVeight  and  effect.     §612. 

3.  Defensive  testimony.     §  613. 
XII.   Ilaheas  corpus.     §  614. 

Xril.  Surrender. 

1.  An  executive  function.     §  615.  -' 

2.  Executive  discretion.     §  616. 

3.  Ohstacle.s  to  surrender.     §617. 

4.  Disposition  of  j>ersf)nal  effects.     §  618. 

5.  Transit.     §  619. 
XIV.   Expensws.     §  620. 

XV.   Restoration  of  j)roj»erty.     §  621. 
XVI.   Deserting  seamen.     §622. 


CnAITER    XV. 

INTERCOURSE  OF  STATES 

I.   Agents  of  the  State.     §  623. 
II.   Diplomatic  missions. 

1.  Cla-ssitication  of  ministers.     §  624. 

2.  Secretaries  of  end)assy  or  legation.     §  625. 

3.  .\ttaches.     §  626. 

4.  Commissioners  and  special  envoys.     §  627. 

5.  "Agents."     §  62S. 

6.  Union  of  ilipUnnatic  and  consular  functions.     §  629. 


LX  TABLE    OF    CONTKNT«. 

II.  Diplomatic  missions — Continued. 

7.   Nondiplomatif  missions.     §  030.  ' 

S.  St'lf-ronstituti'tl  missions.     §  (531. 

III.  Beginning  and  i-nd  of  mission. 

1.  Appointments. 

(1)  Power  of  aiipointnicnt.     §  ()o2. 

(2)  Conditions  and  (|ualitications.     §  ()3!5. 

2.  Credentials  and  reception. 

(1 )  Letters  of  credence  and  of  recall.      §  ()34. 

(2)  Presentation  of.     §  (io.'). 

3.  End  of  mission.     §  ()3(). 

4.  Que.«tion  of  i)ersonal  acceptability. 

(1)  Minister  nnist  be  personally  accejitable.     §  (i.'u. 

(2)  R«'fusal  to  receive.     §  ()3H. 

(3)  Kecinest  for  recall.     §  ()39. 

Cases  of  ^lonstier,  CJenet,  ^Morris,  C.  Pinckjiey,  Poinsett, 
Jewett,  Wise,  Marcoletii,  Segnr,  ('atacazy,  Tburston, 
Dupuy  de  Lome. 

(4)  Dismissal.     §640. 

Cases  of  Yrujo,  Jackson,  Pous.sin,  Crampton,  Russell,  and 
Lord  Sackville;  case  of  Belgian  and  French  ministers  at 
Caracas. 

5.  Citizenshij)  as  obstacle  to  recejition.     §  641. 

IV.  Kiglits  and  duties  of  ministers. 

1.  Privileges.     §(542. 

2.  Transit. 

(1)  By  lan<L     §  643. 

(2)  By  sea.     §  644. 

3.  Residence  at  capital.     §  (>4n. 

4.  Instructions.     §  646. 

r>.  Sui)port  of  i)rivate  interests.      §  647. 

6.  Presentations  at  court.      §  ()4S. 

7.  .Noninterference  in  politics.      §649. 

8.  Speeches.     §  600. 

9.  Presents.     §  6r)L 

10.  J<iint  action.     §  652. 

11.  Ciood  oftices  for  <'itizens  of  third  countries. 

(i)  <  H'ueral  principles.     §653. 

(2)  Case  of  Swiss  citizens.     §654. 

(3)  Citizens  of  belligerents.     §655. 

War  in  ^lexico;  Franco-(  ierman  war;  Chinese-Japanese 
war:  case  nf  Jajianese  spie^;  Si)anish-American  war; 
Boer  war;   liusso-Jaj)anese  war. 

12.  Relations  with  the  Navy.     §656. 
V.   Right  of  protection. 

1.  <  )f  ju'rson.     §  657. 

2.  Of  domicile  and  i)rojK'rty.      §658. 

3.  Of  reputation.      §  659. 
VI.  Jurisdictional  immunities. 

1.    Ivxemption  from  judicial  process. 

(1)  Criminal  process.     §  6()0. 

(2)  Civil  i.roces.s.     §  661. 

(3)  (living  of  testimony.     §662 

(4)  Proi)erty.     §  663. 


TABLE    OF   CONTENTS.  LXI 

YI.  Jurisdictional  imiminitics — Continued. 

2.  Persons  entitled  to  exemption. 

(1)  The  minister  and  his  household.     §  <>64. 

(2)  Persons  in  minister's  service.     §  6H5. 

(8)  Ministers  recalled,  or  not  received.     §666. 

3.  Taxation. 

(1)  Property,  and  person.     §  667. 

(2)  Customs  duties.     §  668. 

4.  Police  rejrulations.     §  669. 
VII.  Official  correspondence. 

1.  The  P^xecutive  as  national  spokesman.     §  670. 

2.  Communications  of  the  President  to  Congre.ss.     §  671. 

3.  Secretary  of  State  as  organ  of  correspondence.     §  672. 

4.  Official  communications.      §  673. 

5.  Conmiunications  from  aliens.     §  674. 

6.  Right  of  official  comnuinication.     §675. 

7.  Language  of  correspondence.     §  676. 
<s.  Tone.     §  677. 

9.  Invi«ilal»ility.     §  678. 

10.  Couriers  and  bearers  of  dispatches.     §  679. 

11.  Publication  of  correspondence.     §  680. 
VIII.  Ceremonial. 

1.  Observance  of  formalities.     §  681. 

2.  Rules  of  precedence. 

(1)  Dijilomatic  grades.     §682. 

(2)  Ambassadiirial  privileges.     §  683. 

3.  Official  calls.     §  684. 

4.  Social  intercourse.     §  685. 

5.  Court  dress.     §  686. 

6.  Audiences  at  Peking.     §  687. 
IX.  Department  of  State. 

1.  Organ  of  official  communication.     §  688. 

2.  Powers  and  duties.     §  689. 

3.  Continuity  of  policy.     §  690. 

4.  Rt^atiuns  to  the  judicial  deiiartment.     §  691. 

5.  Care  of  archives.     §692. 
X.  Salaries  and  expenses. 

1.  Salaries.     §  693. 

2.  Expenses.     §  694. 

3.  Contingent  fund  and  secret  service.     §  695. 


Cn.MTKK  XVI. 

CONSULS. 

I.  Cla.«ses  and  titles.     §  69t). 
II.   .\i)p()intment.      §  697. 

III.  Execpiatur. 

1.  Nature  and  effect.     §  698. 

2.  Conditions  of  issuance.     §  699. 

3.  Refusal  or  revocation.     §  700. 

IV,  Dismissal  or  recall.    §  701. 


LXII  TABLE    OF    CONTENTS. 

V.  PriviUv*'!^  'I'x^  immunities. 

1.  rmU'r  iiitermitional  law  and  treaty.     §  702. 

2.  In  Kantern  eountrieh!.     §703. 

8.  Protection  due  to  consular  ofticer.^.     §  704. 

4.  Protection  of  archives  and  d\vellinj;!«.     §  705. 
r>.  Display  of  national  arms  and  iinj;.     §  706. 

t).  Ceremonial.     §  707. 

7.  Uniform.     §  708. 

5.  Presents.     §  7011. 

9.  Kngafiing  in  Imsiness.     §  710. 
VI.   Amenahility  to  local  jurisdiction. 

1.  Civil  i)rocess.     §  711. 

2.  Criminal  process.     §  712. 

8.  Jurisdiction  of  courts  in  United  States.     §  713 

4.  The  givin^^  of  testimony.     §  714. 

5.  Taxation. 

(1)  Liabilities  aud  exemptions.     §715. 

(2)  Customs  duties.     §  716. 
VII.   Powers  and  duties. 

1.  Scope  and  limitations.     §717. 

2.  Correspondence.     §  718. 

3.  Interposition  with  local  authorities.     §  719. 

4.  Administrations  of  oaths.     §  720. 

5.  Authentication  of  documents.     §  721. 

6.  Administration  of  estates.     §  722. 

7.  Representation  of  private  interests.     §  723. 

8.  .Abstention  from  politics.     §  724. 
VIII.  Sliij)pin<r  and  seamen. 

1.  Consular  powers.     §  725. 

2.  Shipment  and  discharge  of  seamen.     §  726. 

3.  Desertion.     §  727. 

4.  Recovery  of  wages.     §  728. 

5.  Recovery  of  damages.     §  729. 

6.  Provisions  for  crew.     §  7.'J0. 

7.  Relief  of  seamen.     §  731. 
IX.  Salary  and  fees. 

1.  Salary  and  alhjwani'es.      §  732. 

2.  Fees.     §  733. 


Chaitkk  XVII. 

TREATIES. 

I.   Power  to  make. 

1.  Prior  to  tlu!  Constitution.     §  734. 

2.  Under  the  Constitution.     §  735. 

3.  (Question  of  constitutional  limitations.     §  736. 

4.  Cessions  of  territory.     §  737. 

5.  De.«cent  and  temire  of  property.     §  738. 
II.  Negotiation  and  conclusion. 

1.  Full  powers.     §  739. 

2.  Formalities.     §  740, 


TABLE    OF    CONTENTS.  "  LXIJI 

II.  Negotiation  and  condusion — Coiitimu'd. 
.'1   Pre.«ents.     §  741. 
4.   Validity.     §  742. 

III.  Ratitication. 

1.  Question  of  duty. 

(1)  Opinions  of  writers.     §743. 

(2)  American  <liscusi*ions.     §  744. 

2.  Prerogatives  of  the  Senate. 

(1)  Necessity  of  Senate's  approval.     §745. 

(2)  Mode  of  obtaining  advice  and  consent.     §  746. 

(3)  Rejection,  or  failure  to  act.     §  747. 

(4)  Practice  of  amendment.     §748. 
.!.    Exchange  of  ratilications. 

(1)  Act  of  ratification.     §749. 

(2)  Explanatory  declarations.     §750. 
4.  Proclamation.     §  751. 

IV.  Agreements  not  submitted  to  the  Senate. 

1.  Simple  executive  acts.     §  752. 

2.  Agreements  under  acts  of  Congress. 

( 1 )  Connnercial  arrangements.     §  753. 

(2)  International  copyright.     §  754. 

(3)  Postal  conventions.     §  755. 

(4)  Agreements  with  Indian  tribes.     §  756. 
Y.  Enforcement  of  treaties. 

1.  Duty  of  performance.     §  757. 

2.  Legislative  aid.     §  758. 

3.  Appropriations  of  money.     §  759. 

4.  Judicial  action. 

(1)  Province  of  the  courts.     §760. 

(2)  Rule  iis  to  i>oliticaI  questions.      §  761. 

5.  Date  of  taking  effect.     §  762. 

VI.  lnter{)retation. 

1.  ( ieneral  rules.     §763. 

2.  Particular  stipulations.     §  764. 

3.  Most-favi)re<l-nation  clau.ses. 

(1)  Rei'iprocal  concessions.     §765. 

(2)  (ieographical  discriminations.      §  7t)6. 

(3)  RetaHatory  or  compulsive  discriminations.     §  767. 

(4)  Bounties.     §  768. 

(5)  ^liscellaneous  ca.ses.     §  769. 

VII.  Termination. 

1.  (ieneral  rules.     §  770. 

2.  Termination  l)y  notice.     §771. 

3.  Change  in  conditions.     §  772. 

4.  Changes  in  sovereignty  and  govermuent.     §  773. 

5.  Legislative  abrogation.     §  774. 

6.  Implied  revocation  or  rej)eal. 

(1)  Earlier  by  later  treaty.     §775. 

(2)  Treaty  by  later  statute.     §776. 

(3)  Statute  by  later  treaty.      §  777. 

(4)  State  constitutions  and  statutes  by  treaties.      §  778. 

7.  Effect  of  war.     §  779. 

8.  Survival  of  vested  rights.      §  780, 


LXIV  TABLE    OF    CONTENTS. 


('HAITKK    XVIII. 

CONVENTIONAL  AHD  riPLOMATIC  EELATI0N8. 

I.   Argentine  I\epul)lic'.     §  "SI. 
II.   Au.<tria-llungary.     §  782. 

III.  Barbary  powers. 

1.   I'iirly  relations.     §  78']. 
L'.  Algiers.     §  7S4. 
8.  ^lorocco.     §  785. 
4.  Tripoli.     §  786. 

0.  Tunis.     §  787. 

IV.  Belgium.     §  788. 
V.  Bolivia.     §  789. 

VI.  Brazil.     §  7VH). 
VII.  Central  Anieriea. 

1.  Costa  Kiea.     §  791. 

2.  Iloiuluras.   §  792. 
;i  (Juateinala.     §  79;. 
4.   Nicaragua.     §  794. 

0.  Salvador.     §  79o. 
VIII.  Chile.     §  7W. 

IX.  China. 

1.  Treaty  of  1S44.     §  797. 

2.  Treaties  of  18o8.      §  79S. 
:i  Treaty  of  1S6S.     §  79*t. 

4.  Iinniigration  an<l  other  treaties,  1880-1S94.     §  800. 

5.  Taxes.     §  801. 

6.  Industries.     §  802. 

7.  Travel.     §  SO:i 

8.  Missionary  privileges  and  proteetion.     §  804. 

9.  Purchase  of  land.   §805. 

10.  Treaty  j)orts,  and  foreign  .settlements.      §  8(Mi. 

11.  Lea.si's  to  European  powers.     §  807. 

12.  Boxer  movement. 

( \)   Siege  and  relief  of  legations.     §  80*^. 
(2)   Negotiations  for  settlement.     §809. 
(.'])   Protocol  of  Septem])er  7,  1901.     §810. 
1.'5.  Open  <loor  j)olicy. 

(1)  The  Hay  agreement.     §811. 

(2)  A nglo-(  ierman  agreement.     §812. 
14.   Territ<»rial  integrity;  neutrality.     §  818. 

X.  Coloml)ia.     §  814. 
XI.   Cong<j.      §  815. 
XII.   Corea.     §  81(). 

First  attempts  to   negotiate;    Shufeldt  treaty,    1882;    treaty   rights    of 
.\niericans;  f(jn'ign  settleinent.«;  Japanese  intervention. 

XIII.  Denmark.     §  817. 

XIV.  Dofpinican  Kei)ublic,     §  818. 
XV.  iifuador.     §819. 


TABLE    OF    CONTENTS.  LXV 

XVI.   Egypt.     §820. 
XVII.  France. 

1.  Treaty  relations.     §821. 

2.  Treaty  decisions.  §  822. 
XVIII.  Germany.     §823. 

XIX.  Great  Britain. 

1.  Treaty  of  peace,  1782-3. 

(1)  Negotiations.     §824. 

Shelburne;  Fox;    Oswald;    Vergennes;    Franklin; 
Jay;  Adams. 

(2)  Effect  of  stipulations.     §825. 

2.  Jay  treaty,  1794. 

(1)  Historical  sketch.     §826. 

(2)  Particular  stipulations.     §  827. 

3.  Monroe-Pinkney  and  cognate  negotiations.     §  828. 

4.  Treaty  of  Ghent.     §  829. 

5.  Treaty  of  1815.     §  830. 

6.  Naval  forces  on  Great  Lakes,  1817.     §  831. 

7.  Fisheries  convention,  1818.     §  832. 

8.  Indemnity  for  slaves,  1822.     §  833. 

9.  Webster- Ash  burton  treaty.     §  834. 

10.  Oregon  treaty.     §835. 

11.  Clayton-Bulwer  treaty.     §836. 

12.  Reciprocity  treaty  of  1854.     §  837. 

13.  Treaty  of  Washington,  1871.     §  838. 

14.  Real  estate  convention,  1899.     §  839. 

15.  Canadian  relations.     §  840. 

16.  The  Queen's  jubilee.     §  841. 
XX.  Greece.     §  842. 

XXI.  Hayti.     §  843. 
XXII.  Italy.     §  844. 

XXIII.  Japan. 

1.  Early  attempts  to  negotiate.     §  845. 

2.  Perry's  successful  mission.     §  846. 

3.  Harris  treaties,  and  Japanese  embassy.     §  847. 

4.  Domestic  disturbances.     §  848. 

5.  Affair  of  Shimonoseki.     §  849. 

6.  Convention  of  1866,  and  treaty  revision.     §  850. 

7.  Emancipation  of  Japan.     §  851. 

XXIV.  Liberia. 

1.  Declarations  of  American  policy.     §  852. 

2.  Treaty  of  1862,  Art.  VIII.     §  853. 

3.  Relations  with  Great  Britain.     §  854. 

4.  Relations  with  France.     §  855. 
XXV.  Madagascar.     §  856. 

XXVI.  Mexico. 

1.  Relations,  1825-1848.     §  857. 

2.  Treaty  of  Guadalupe-Hidalgo.     §  858. 

3.  Mesilla,  and  later,  treaties.     §  859. 

4.  Domestic  disturbances;  intervention.     §860. 

5.  Later  relations.     §  861. 

6.  Zona  Libra,  or  Free  Zone.     §  862. 

7.  Crossing  of  l)order  by  cattle.     §  863. 

H.  Doc.  551 V 


LXVI  TABLE    OF    CONTENTS. 

XXVII.  Mupc-at.     §  SW. 
XXVllI.   Netlierlamls.     §865. 
XXIX.  Ottoman  Porte. 

1.  Treaty  of  1830.     §  8H6. 

2.  Treaty  of  1862.     §  867. 

3  Real  estate  protocol,  1874.     §  868. 

4.  Extradition  treaty.     §  869. 

5.  Educrational,  eleemosynary,  and  religious  institutions.     §  870. 

6.  Schools.     §  871. 

7.  Sale  of  books.     §  872. 

8.  Freedom  of  worshi]).     §  873. 

9.  Armenian  ditHculties.     §  874. 
10.  Various  topics.     §  875. 

XXX.  Paraguay.     §  876. 

XXXI.  Persia.  §  877. 

XXXII.  Peru.     §  878. 

XXXIII.  Portugal.     §879. 

XXXIV.  Russia.     §880. 
XXXV.  Samoan  Islands.     §881. 

XX XVI.  Siam.     §  882. 
XXXVII.  Spain. 

1.  Treaty  of  October  27,  1795.     §  883. 

2.  Treaty  of  February  22,  1819.     §  884. 

3.  Convention  of  February  17,  1834.     §  885. 

4  Reciprocity  agreement,  1891.     §  886. 

5.  Treaty  of  December  U),  1898.     §  887. 

6.  Caroline  Islands.     §  888. 
XXXVIII.  Sweden  and  Xorway.     §  889. 

XXXIX.  Switzerland.     §890. 

XL.  Tahiti.     §  891. 

XLI.  Tonga.     §  892. 

XLII.   Uruguay.     §  893. 

XLI II.   Venezuela.     §  894. 

XLIV.   Zanzibar.     §  895. 

XLV.  Multipartite  treaties.     §  896. 


Chaitkk  XIX. 

INTERVENTION. 

I.   Political  intervention. 

1.  (iencral  principles.     §  897. 

2.  Policy  of  nonintervention. 

(1)  Declarations  of  i)olicy.     §898. 

(2)  The  French  revolution.     §  899. 

(3)  Sjtain  and  her  colonies.     §  900. 

(4)  (ireek  independence.     §  901. 

(5)  Hungarian  revolution.     §  902. 

(6)  Chile-Peruvian  war.     §  903. 

(7)  5ymj)athy  witli  liberal  political  struggles.     §  904. 

(8)  Hospitality  to  political  refugees.     §  905. 


TABLE    OB^    CONTENTS.  LXVII 


I.  Political  intervention — Continued. 

3.  Intervention  in  Cuba. 

(1)  Relations,  1825-1867.     §90*5. 

(2)  Ten  years'  war,  1868-1S7S.     §  907. 

(3)  Insurrection  of  1895.     §  908. 

(4)  Resolution  of  intervention.     §  909. 

(5)  The  Republic  of  Cuba.     §  910. 

4.  Good  offices.     §  911. 
II.  Nonpolitical  intervention. 

1.  Protection  of  citizens.     §  912. 

2.  Denial  of  justice.     §  913. 

3.  Criminal  jiroceedings. 

(1)  Jurisdiction  and  procedure.     §  914. 

(2)  Requests  for  information.     §  915. 

4.  Debts  and  contracts.     §  916. 

5.  Joint  action;  concerted  action.     §917. 

6.  Attempts  to  limit  intervention. 

(1)  By  contract.     §  918. 

(2)  By  legislation.     §  919. 

7.  Gftod  offices. 

(1 )  Matters  of  business.     §  920. 

(2)  Appeals  for  clemency.     §  921, 

8.  Protection  of  missionaries.     §  922. 

9.  Intercession  for  persecuted  Jews. 

( 1 )  Mohammedan  countries.     §  923. 

(2)  Case  of  the  Mortara  l)oy.     §  924. 

(3)  Russia.     §  925. 

(4)  Roumania.     §  926. 


Chapter  XX. 

THE  MONROE  DOCTKINE. 

I.  Early  expressions  of  American  policy.     §  927. 

II.  Resolutions  as  to  the  Floridas.     §  92S. 

III.  Revolution  in  Spanish  America.     §  929. 

IV.  The  Holy  Alliance. 

1.  Treaty  of  September  26,  1815.     §  930. 

2.  Anxiety  as  to  Cuba.     §  931. 

3.  Canning-Rush  negotiations.     §  9.32. 

4.  Monroe-Jefferson-lNIadison  corn'spoiuiciue.     §  933 

5.  Adams-Tuyll  correspondence.     §  934. 

6.  Cabinet  deliV)erations.     §  935. 

V.  Monroe's  message,  December  2,  1823.     §  936. 
VI.  Contemporary  acts  and  expositions.     §  937. 
VII.   English  action  and  opinion.     §  938. 
VIII.  The  noncolonization  principle. 

1.  Controversy  with  Russia.     §  939. 

2.  The  Panama  Congress.     §  940. 


LXVIII  TABLE    OF    CONTENTS. 

VI II.  Tht>  noncolonization  principle — Continued. 

.1.  President  Polk's  message,  1845.     §  941. 

4.  Case  of  Yucatan.     §  942. 

5.  Later  illustrations.     §  943. 

IX.  Special  applications  of  Monroe  doctrine. 

1.  Argentine  Republic.     §  944. 

2.  Bolivia.     §  945. 

3.  Brazil.     §  946. 

4.  Central  America.     §  947. 

5.  Chile.     §  948. 

6.  Colombia.      §  949. 

7.  Cuba. 

(1)  Declarations  of  policy.     §  950. 

(2)  Refusal  of  neutralization.     §951. 

(3)  Independence.     §  952. 

8.  Ecuador.     §  953. 

9.  Hayti.     §  954. 

10.  Mexico. 

(1)  European  interference  opposed,  1825-1860.     §  955. 

(2)  Reprisals  by  allied  powers,  1861-2.     §  956. 

(3)  French  intervention,  1862-1867.     §  957. 

(4)  Prevention  o*  Austrian  aid,  1866.     §  958. 

11.  Peru.     §  959. 

12.  Santo  Domingo. 

(1)  American-European  intervention,  1850-ol.     §960. 

(2)  Spanish  reannexation,  1861-18^5.     §  961. 

(3)  Protocol  of  February  7,  1905.     §  962. 

13.  Republic  of  Texas.     §  963. 

14.  Venezuela. 

( 1 )  Use  of  goo<l  offices.     §  964. 

(2)  Avoidance  of  joint  action.     §  965. 

(3)  Territorial  integrity.     §  966. 

Boundary  with  British  Guiana;  Mr.  Dlney's  instructions, 
July  20,  1895;  Lord  SaTisbury's  resixmse,  November  26, 
1895;  President  Cleveland's  special  message,  December  17, 
1895;  arbitral  settlement. 

(4)  Claims.     §  967. 

Discussion  of  1880-81. 

Germany,  Great  Britain,  and  Italy,  1902-3. 
Argentine  propositions. 
X.  (General  expositions.     §  968. 
The  Hague  declaration. 

President  Roosevelt's  annual  raes.sages,  1901,  1902. 
Comments  of  publicists. 
XI.  International  American  conferences.     §  969. 


TABLK    OF    CONTENTS.  LXIX 


Chaptkr  XXI. 

CLAIMS. 

I.  Mode  of  presentation. 

1.  Against  the  United  States.     §  970. 

2.  Against  foreign  governments.     §  971. 

3.  Petition  and  proof.     §  972. 
II.   Prosecution. 

1.  Discretion  as  to  presentation.     §  973. 

2.  Obstacles  to  presentation. 

(1)  Objections  based  on  public  policy.     §  974. 

(2)  Loss  of  right  to  national  protection.     §  975. 

(3)  Censurable  conduct  of  claimant.     §  976. 

(4)  Question  of  unneutral  transaction.     §  977. 

3.  Discretion  as  to  time  and  manner  of  pressure.     §  978. 

III.  Conditions  of  intervention. 

1.  Citizenship  as  a  rule  essential.     §  979. 

2.  Declaration  of  intention  insufficient.     §  980. 

3.  Naturalization  not  retroactiA  e.     §  981. 

4.  Right  of  interposition  not  assignable.     §  982. 

5.  Not  derivable  from  partnership  association.     §  983. 

6.  Corporations. 

(1)  Interposition  in  behalf  of  the  corporation.     §  984. 

(2)  Interposition  in  behalf  of  security  holders.     §  985. 

IV.  Grounds  of  intervention. 

1.  Denial  of  justice.     §  986. 

2.  Local  remedies  must,  as  a  rule,  be  exhausted.     §  987. 

3.  Local  remedies  need  not  be  exhausted. 

(1)  Where  justice  is  wanting.     §988. 

(2)  Where  they  have  been  superseded.     §  989. 

(3)  Where  they  are  insufficient.     §  990. 

4.  Ihijust  judgments  not  internationally  binding.     §  991. 

5.  Unjust  discriminations.     §  992. 

6.  Claims  to  land. 

(1)  Titles  exclusively  determinable  by  lex  rei  sitae.     §  993. 

(2)  Denial  of  justice  may  afford  ground  for  intervention.     §  994. 

7.  Contra(;t  claims. 

(1)  Not,  as  a  rule,  officially  presented.     §  995. 

(2)  Exception  where  diplomacy  is  the  only  method  of  redress. 

§996. 

(3)  Confiscatory  breaches  of  contract.     §  997. 
V    Acts  of  autliorities. 

1.  Who  may  be  considered  as  "authorities."     §  998. 

2.  Responsibility  for  their  acts. 

( 1 )  Within  scope  of  agency.     §  999. 

(2)  Outside  scope  of  agency.     §  1000. 

(3)  Exaction  of  redress  for  outrages.     §  1001. 


LXX  TABLE    OF    CONTENTS. 

V.  Acts  of  authorities — Continued. 

3.  Judicial  authorities.     §  1002. 

4.  Sanitary  measures.     §  100.3. 

5.  Tariff  changes.     §  1004. 

6.  Debasement  of  the  currency.     §  1005. 

7.  Patents  and  inventions.     §  1006. 

8.  "Unclaimed  e^'Jtates"  claims.     §  UX)7. 

9.  Liability  for  torts  of  public  ships.     §  1008. 
10.  Acts  of  soldiers.     §  1009. 

\'L   Arrest  and  imprisonment. 

1.  Indemnity  not  demanded!  where  proceedings  are  regular.     §  1010. 

2.  Reparation  for  false  or  irregular  arre.«t.     §  1011. 

3.  Wrongful  arrest  and  maltreatment.     §  1012. 

4.  Imprisonment  in  violation  <»f  treaty  right.     §1013. 

5.  Enforced  lalx)r  in  case  of  j)ersons  accused.     §  1014. 

6.  Detention  of  witnesses.     §  101.5. 

7.  Martial  law.     §  1016. 

8.  Protocol  with  Spain,  1877.     §  1017. 
VII.   Expulsion.     §  1018. 

VIII.   A(t<  of  private  persons. 

1 .  Governments,  as  a  rule,  not  liable.     §  1019. 

2.  Liability  may  result  from  negligence.     §  1020. 

3.  Brigandage.     §  1021. 
IX.   .Mob  violence. 

1.  Destruction  of  French  privateers,  1811.     §  1022. 

2.  Riots  at  New  Orleans  and  Key  West,  1»51.     §  1023. 

3.  Panama  riot,  1856;  Fortune  Bay  case,  1878.     §  1024. 

4.  .\ttacks  on  Chinese  at  Rock  Springs  and  elsewhere.     §  1025. 

5.  Lynching  of  Italians  at  New  Orleans  and  elsewhere.     §  1026. 

New  Orleans,   1891;     Colorado,   1895;    Hahnville,    La.,    1896; 
Tallulah,  La.,  1899;  Erwin,  Miss.,  1901. 

6.  Case  of  Bain  and  other  ca.ses.     §  1027. 

Bain's  case;  cases  of  Moreno  and  Suaste. 

7.  Case  of  Don  Pacilico.     §  1028. 

8.  Ca.«e  of  U.  S.  S.  Baltimore  and  other  cases.     §  1029. 

Baltimore  ca.«e;  ca.se  of  Alfonso  XII;  Caroline  Islands  case. 

9.  Cases  in  Turkey.     §  1030. 

10.   Killing  of  rioters  by  authorities.     §  1031. 
X.  Claims  leased  on  war. 

1.  Imlemnity  not  usually  allowed    on  account   of  operations  of  war. 

§  1032.  " 

2.  F(jr  .seizing  resources  of  the  enemy.     §  1033. 

3.  Compensation  for  proj>erty  taken  for  belligerent  use.     §  1034. 

4.  CMaims  for  emV)argoes.     §  1035. 

5.  Force«l  loans.     §  1036. 

6.  Damages  for  wanton  or  unlawful  acts.     §  1037. 

7.  (.Question  of  reconcentnition.     §  10.38. 

S.   (Question  as  to  comj)ensation  for  cable  cutting.     §  1039. 
XI.   Bomltardments. 

1.  (ireytown.     §  1040. 

2.  Valparaiso.     §  1041. 


TABLE    OF    CONTENTS.  LXXI 

XI.  Bombardments — Continued. 

3.  Goods  in  public  warehouse. 

(1)  Antwerp,  1830.     §  1042. 

(2)  Messina  and  elsewhere.     §  1043. 

XII.  Acts  of  insurgents. 

1.  Opinions  of  publicists.     §  1044. 

2.  Denials  of  liability.      §  1045. 

3.  Assertions  of  liability;  grants  of  compensation.     §1046. 

4.  Indemnity  for  acts  of  successful  revolutionists.     §  1047. 

5.  Payment  of  duties  to  insurgents.     §1048. 

XIII.  Neuti-al  rights  and  duties. 

1.  Violation  of  neutral  rights.     §  1049. 

2.  Failure  to  perform  neutral  duties.     §  1050. 

XIV.  Defenses. 

1.  Part  payment.     §  1051. 

2.  Limitation  and  prescription.     §  1052. 

3.  Effect  of  war.     §  1053. 

4.  Question  of  claimant's  character  or  conduct.     §1054. 

XV.  Power  to  settle. 

1.  Governmental  control.     §  1055. 

2.  National  neglect  or  sale  of  claim.     §  1056. 

French  spoliation  claims. 

3.  Right  to  withdraw  or  abandon      §  1057. 

XVI.  Damages. 

1.  Measure  of  damages.     §  1058. 

2.  Interest.     §  1059. 
XVII.   Payment.     §1060. 

X\'1II.  Nonpecuniary  redress. 

1.  Cession  of  territory.     §1061. 
2    Apology.     §1062. 

3.  Salute  to  the  flag.     §  1063. 


Chapter  XXII. 

MOBES  OF  BEDBESS. 

I.  Amicable. 

1.  Negotiation.     §  1064. 

2.  Good  offices  and  mediation. 

(1)  To  adjust  differences.     §1065. 

(2)  To  avert  hostilities.     §  1066. 

(3)  To  end  war.     §  1067. 

(4)  The  Hague  convention.     §  10()8. 

3.  Arbitration. 

(1)  A  judicial  method.     §  1069. 

(2)  Agreement  to  arbitrate.     §  1070. 

(3)  Appointment  of  arbitrators.     §  107 


LXXII  TABLE    OF    CONTENTS. 

I.  Amicable — Continued. 

3.  A  rbitration — Continued. 

(4)  Limitation  of  arbitrators'  powerw.     §  1072. 

(5)  Power  to  determine  jurisdiction.     §  1073. 

(6)  Majority  decision.     §  1074. 

(7)  Rules  of  decision.     §1075. 

(8)  Agents  and  attorneys.     §  1076. 

(9)  Cessation  of  arbitrators'  functions.     §  1077. 

(10)  Testimonial  and  expenses.     §  1078. 

(11)  Pay'»ent  and  distribution  of  award.     §1079. 

(12)  Barring  of  unpresented  claims.     §1080. 

4.  Finality  of  awards. 

(1)  Hule  oi  res  judicata.     §1081. 

(2)  Award  outside  limits  of  submission  not  binding.     §  1082. 

(3)  Decisions  impeachable  for  fraud.     §  1083. 

5.  General  arbitration.  ^ 

( 1 )  Project  of  International  American  Conference.  1890.    §  1084. 

(2)  Olney-Pauncefote  treaty,  1897.     §  1085. 

(3)  The  Hague  convention,  1899.     §  1086. 

(4)  Second  International  American  Conference,  1902.     §  1087. 

(5)  Subsequent  measures.     §  1088. 
II.  Nonamicable,  short  of  war. 

1.  Withdrawal  of  diplomatic  relations.     §1089. 

2.  Eetorsion  or  retaliation.     §  1090. 

3.  Display  of  force.     §  1091. 

4.  Use  of  force. 

(l)With  special  authority.     §  1092. 

(2)  Without  special  anthority.     §1093. 

(3)  Gain  of  preference  in  payment.     §  1094. 

5.  Reprisals. 

(1)  Nature  of  the  remedy.     §1095. 

(2)  Examples.     §  1096. 

6.  Pacific  blockade.     §  1097. 

7.  Embargo.     §  1098. 

8.  Nonintercourse.     §  1099. 


Chaiter  XXIII. 

WAB. 

I.   Definitions.     §  1100. 
II.   Kinds. 

1.  Public  and  general.     §1101. 

2.  Limited.     §  1102. 

3.  Civil.     §  1103. 

4.  Private  (IK)  longer  admissible).     §1104. 
III.  Power  to  make.     §  1105. 


TABLE    OF    CONTENTS.  LXXIIl 

IV.  Commencement  of  war. 

1.  Declaration.     §  1106. 

2.  Hostilities  prior  to  declaration.     §  1107. 

3.  Civil  war.     §  1108. 
V.  Belligerents. 

1.  Combatants  and  noncombatants.     §1109. 

2.  Nonliability  for  belligerent  acts.     §  1110. 
VI.  Belligerent  measures. 

1.  Permissible  violence.     §  1111. 

2.  Sieges  and  bombardments.     §  1112. 

3.  Devastation.     §  1113. 

4.  Retaliation.     §  1114. 

5.  Deceit.     §  1115. 

6.  Treatment  of  resident  alien  enemies.     §  1116. 

7.  Prohibition  of  exports.     §  1117. 

8.  Protection  of  neutral  person.*  and  property.     §  1118. 

9.  Prohibited  measures. 

(1)  Particular  acts.     §  1119. 

(2)  Bombardment  of  undefended  towns.     §1120. 

(3)  Pillage.     §  1121. 

(4)  Denial  of  quarter.     §  1122. 

(5)  Wanton  destruction.     §  1123. 

(6)  Prohibited  implements.     §  1124. 

(7)  Uncivilized  warfare.     §  1125. 

Case  of  Arbuthnot  and  Ambrister. 
10.  Question  as  to  concentration.     §  1126. 
VII.  Prisoners  of  war. 

1.  Who  are  and  who  are  not.     §  1127. 

2.  Treatment.     §  1128. 

3.  Exchange.     §  1129. 

4.  Parole.     §  1130. 

5.  Repatriation.     §  1131. 

6.  Spies,  war  traitors,  war  rebels.     §  1132. 

7.  Deserters.     §  1133. 

VIII.  Treatment  of  the  wounded.     §  1134. 

Geneva  (Red  Cross)  convention,  1864. 
IX.  Interruption  of  commercial  relations. 

1.  Suspension  of  intercourse.     §  1135. 

2.  Contracts. 

(1)  Limitations  on  power  to  contract.     §1136. 

(2)  Suspension  or  dissolution  of  contracts.     §  1137. 

(3)  Cassation  of  interest.     §  1138. 

3.  Judicial  remedies. 

(1)  Suspension  and  revival.     §1139. 

(2)  Suspension  of  statute  of  limitations.     §  1140. 

4.  Licenses.     §  1141. 

5.  Interference  with  means  of  communication.     §  1142. 
X.  Military  occupation. 

1.  Occupied  territory  and  its  administration.     §  1143. 

2.  Civil  war  cases.     §  1144. 

3.  Regulation  of  commerce.     §  1145. 

4.  Treatment  of  the  inhabitants.     §1146. 


LXXIV  TABLE    OF    CONTENTS 

X.   Military  occupation — Continued. 

5.  Martial  law.     §  1147, 

6.  I^w  a.s  to  public  property.     §  1148. 

7.  Law  as  to  private  property. 

(1)  Taxes;  contributions;  requisitions.     §  1149. 

(2)  Confiscation.     §  1150. 

(3)  Confiscations  acts,  1861,  1862.     §  1151. 

(4)  Abandoned  and  captured  property  act.     §  1152. 

(5)  Cotton.     §  1153. 

(6)  Slaves.     §  1154. 

(7)  Debts.     §  1155. 

Public  debts;  private  debts. 
XI.  Conquest.     §  1156. 
XII.  Pacific  intercourse  of  belligerents. 

1.  Flags  of  truce.     §1157. 

2.  Passports  and  safe  conducts.     §1158. 

3.  Safeguards.     §  1159. 

4.  Capitulations.     §  1160. 

5.  Suspensions  of  arms.     §1161. 

6.  Truces  or  armistices.     §1162. 

XIII.  End  of  war.     §  1163. 

XIV.  Codifications  of  the  laws  of  war.     §  1164. 
XV.  Indian  wars.     §  1165. 


Chapter  XXIV. 

MARITIME  WAE. 

I.  Coast  warfare. 

1.  The  American  revolution.     §1166. 

2.  War  of  1812.     §  1167. 

3.  Bombardment  of  Greytown.     §  1168. 

4.  Crimean  war.     §  1169. 

5.  Bombardment  of  Valparaiso.     §  1170. 

6.  British-French  discussions,  1882,  1888.     §  1171. 

7.  Chilean  revolution,  1891.     §  1172. 

8.  Rules  of  the  Institute  of  International  Law,  1896.     §  1173. 

9.  Discussions  in  The  Hague  conference.     §  1174. 
II.   Mines  and  torpedoes.     §1175. 

HI.  Cutting  of  cables.     §1176. 
IV.   Prisoners.     §  1177. 

V.  Treatment  of  sick  and  wounde<l.     §  1178. 
VI.  Commercial  intercourse. 

1.  Right  of  neutrals  to  trade.     §  1179. 

2.  Rule  of  1756;   "continuous  voyages."     §1180. 

3.  Prohibition  of  trade  iK'tween  enemies.     §1181. 

4.  Acceptance  of  enemy's  license  or  protection.     §  1 182. 


TABLE    OF    CONTENTS.  LXXV 

VII.  Enemy's  property. 

1.  Liability  to  seizure.     §  1183. 

2.  Title  to  property  in  transit.     §  1184. 

3.  Produce  of  the  enemy's  soil.     §  1185. 

4.  Property  in  the  enemy's  service.     §  1188. 

5.  Transfer  of  enemy  ships  to  neutrals. 

(1)  Public  ship.     §1187. 

(2)  Merchant  vessels.     §  1188. 
VIII.  Enemy  character. 

1.  Belligerent  domicil.     §  1189. 

2.  Immateriality  of  personal  disposition.     §  1190. 

3.  Consuls.     §  1191. 

4.  Interests  of  partners.     §  1192. 

5.  Change  of  domicil.     §  1193. 

6.  Corporations.     §  1194. 
IX.  Exemptions  from  capture. 

1.  Goods  on  neutral  vessels.     §  1195. 

2.  Vessels  in  or  sailing  for  port  at  ontl)reak  of  war.     §  1196. 

3.  Particular  exemjitions.     §  1197. 

4.  Proposed  general  immunity.     §  1198. 
X.   Visit  and  search. 

1.  A  belligerent  right.     §1199. 

2.  Mode  of  exercise.     §  1200. 

3.  Mail  steamers  and  mails.     §  1201.  — 

4.  Resistance  to  or  evasion  of  search.     §  1202. 

5.  Use  by  neutral  of  armed  enemy  ship.     §  1203. 

6.  Convoy. 

(1)  Neutral.     §  1204. 

(2)  Belligerent.     §  1205. 
XI.  Capture. 

1.  What  constitutes.     §1206. 

2.  Who  may  make.     §  1207. 

3.  Rights  of  captor.     §  1208. 

4.  Probable  cause.     §  1209. 

5.  Wrongful  capture.     §  1210. 

6.  Capture  in  neutral  territory.     §  1211. 

7.  Sending  in  of  prize.     §  1212. 

Duty  to  send  in;  question  of  destruction. 

8.  Recapture;  salvage.     §  1213. 

9.  Safe  conduct;  ran.soms.     §  1214. 
XII.   Privateers. 

1.  What  are,  and  what  are  not.     §  1215. 

2.  Bonding  and  responsibility.     §  1216. 

3.  Instructions,  1812.     §  1217. 

4.  Asylum.     §  1218. 

5.  Legality  and  policy.     §  1219. 
XIII.   Declarations  of  maritime  law. 

1.  The  armed  neutrality.     §1220. 

2.  Declaration  of  Paris.     §  1221. 


LXXVI  TABLE    OF    CONTENTS. 

Chapter  XXV. 

PRIZE  COURTS  AND  PROCEDURE. 

I.  Courts.     §  1222. 
i  (.  Juri.«diction. 

1.  Courts  of  captor' a  country.     §1228. 

2.  Possession  of  the  captured  i)roi)erty.     §  1224. 

3.  Cases  of  violated  neutrality.     §  1225. 

4.  Damages. 

(1)  Right  to.     §  1226. 

(2)  Measure.     §  1227. 

(3)  Probal)le  cause.     §  1228. 

III.  .Jurisprudence. 

1.  Principles  observed.     §  1229. 

2.  Liens.     §  1230. 

3.  Freight.  §  1231. 

IV.  Procedure. 

1.  General  rules.     §  1232. 

2.  Plxamination  in  j)reparatorio.     §  12.33. 

3.  Order  for  further  proof.     §  1234. 

4.  Appeals.     §  1235. 

5.  Sale  of  cajitured  proj>erty.     §  1236. 
V.  Evidence. 

1.  Competency  and  weight.     §  1237. 

2.  Burden  of  proof.     §  1238. 
VI.  Condemnation. 

1.  Necessity  of.     §  1239. 

2.  Effect  of  fraudulent  conduct.     §  1240. 

3.  Power  to  remit  forfeitures.     §1241. 
VII.  Effect  of  judicial  sentences. 

1.  Conclusiveness  a.s  to  property.     §  1242. 

2.  Jurisdictional  limitations  or  defects.     §1243. 

3.  Incondusiveness  as  to  international  right«.     §  1244. 
VIII.  Prize  money  and  bounty. 

1.  Claimants  of  i)rize  money.     §  1245. 

2.  Proportions  awarded.     §  1246. 

3.  Bounty.     §  1247. 

4.  Abolition  of  prize  money  and  bomity.     §  1248. 


Chapter  XXVI. 

CONTRABAND. 

I.  Restriction  on  neutral  trade.     §  1249. 
II.   What  articles  are  contraband.     §  1250. 
III.  Governmental  lists.     §  1251. 


TABLE    OF    CONTENTS.  LXXVH 

IV.  Controversies  as  to  certain  articles. 

1.  Coal.     §  1252. 

2.  Provisions.     §  1253. 

3.  Cotton.     §  1254. 
V.  Destination. 

1.  Must  be  hostile.     §  1255. 

2.  Doctrine  of  ' '  contiguous  voyages. ' ' 

(1)  Question  raised  in  American  civil  war.     §  1256. 

(2)  Cases  of  Dolphin  and  Pearl.     §  1257. 

(3)  Case  of  the  Stephen  Hart.     §  1258. 

(4)  Case  of  the  Bermuda.     §  1259. 

(5)  Matainoras  cases.     §1260. 

(6)  Caseof  the.S'/)n?iir/>oyl-.     §1261. 

(7)  Delagoa  Bay  cases.     §  1262. 
VI.  Penalty.     §  1263. 

VII.  Analogues  <>f  contraband. 

1.  Military  persons.     §  1264. 

2.  Trent  case.     §  1265. 


Chaptbr  XVII. 

BLOCKADE. 

I.  A  l)elligerent  right.     §  1266. 
II.  Governmental  and  de  facto  blockades.     §  1267. 

III.  Conditions  of  validity. 

1.  Authority  to  institute.     §  1268. 

2.  Effectiveness.     §  1269. 

3.  Paper  blockades.     §  1270. 

4.  Closure  of  insurgent  ports.     §  1271. 

IV.  Breach  of  blockade. 

1.  Notice.     §  1272. 

2.  Sailing  toward  blockaded  port.     §  1273. 

3.  Attempt  to  enter.     §  1274. 

4.  Evidence.     §  1275. 

5.  Destination.     §  1276. 

6.  Egress.     §  1277. 

7.  Capture  and  penalty.     §  1278. 

8.  Deposit  of  offense.     §  1279. 
V.   Cessation  of  blockade. 

1.  Termination.     §  1280. 

2.  Suspension.     §  1281. 
\'I.   Ameliorations. 

1.  Special  concessions.     §  1282. 

2.  Days  of  grace.     §  1283. 

3.  Ships  of  war.     §  1284. 

4.  Diplomatic  agents.     §  1285. 

VII.  Obstruction  of  navigable  channels.     §1286. 


LXXVIII  TABLE    OF    CONTENTS. 


CnAPTER   XXVIII. 

NEUTRALITY. 

I.   Nature  of  obligation. 

1.  Its  (significance.     §  12S7. 

2.  Governmental  eontUict.     §  1288. 

3.  Conduct  of  public  official.' .     §1289. 

4.  Conduct  of  private  i>erson.s.     §1290. 
II.   Standard  of  obligation.     §1291. 

III.  Prohibited  acts. 

1.  Acceptance  of  commiasion.     §1292. 

2.  Enlistments.     §  1293. 

3.  Fitting  out  or  arming  of  vessels. 

(1)  Statutory  provisions.     §  1294. 

(2)  Origin  of  inhibition.     §  129;"). 

(3)  Constituents  of  the  offense.     §  1296. 

(4)  Acts  not  within  the  statute.     §  1297. 

4.  Augmentation  of  force.     §  1298. 

5.  Hostile  expeditions. 

(1)  Constituents  of  offense.     §1299. 

(2)  Diplomatic  discussions.     §  1300. 

6.  Use  of  neutral  territory  as  "base  of  oi)erations." 

(1)  Station  for  hostihties.     §1301. 

(2)  Sale  of  prizes.     §  1302. 

(3)  Hostile  passage.     §1303. 

(4)  Telegraphic  service.     §1304. 

(5)  Coal  supplies.     §  1305. 

7.  Question  as  to  rescue  of  seamen.     §1306. 
I\'.   Acts  not  i)rohibited. 

1.  Sale  of  merchant  ships.     §1307. 

2.  Sale  of  contraband. 

( 1 )  By  private  persons.     §  1308. 

(2)  By  Government",  inadmissible.     §  1309. 

3.  Blockade  running.     §  1310. 

4.  I^)ans  or  contributions  of  money. 

(1)  By  private  persons.     §1311. 

(2)  By  Governments,  inadmissil)le.     §  1312. 
.").   Expre.«sions  of  opinion.     §  1313. 

\'.    Asylum. 

1.  ("oiuession  presumed.     §1314. 

2.  Limitation  of  stay  and  supplies.     §  1315. 

3.  Repairs. 

(1 )  Of  war  damage,  inadmissible.     §  .1316. 

(2)  Ordinary  damage;  limitations;  internment.     §  1317. 

(3)  Internment  of  fugitive  troops.     §1318. 
V'l.    Knff>r(ement  of  neutral  duties. 

1.  Prodamation.s.     §  1319. 

2.  Legislation.     §1320. 


TABLE    OF    CONTENTS.  LXXIX 

VI.  Enforcement  of  neutral  duties — Continued. 

3.  Executive  action.     §  1321. 

4.  Judicial  action.     §  1322. 

5.  Arrest  and  detention.     §  1323. 

6.  Exaction  of  bond.     §  1324. 

7.  Restitution  of  captured  property.     §1325. 

8.  Effect  of  a  commission.     §  1326. 

9.  Question  of  extraterritorial  pursuit.     §  1327. 

10.  Duty  under  extraterritorial  jurisdiction.     §  1328. 
VII.  Measure  of  exertion. 

1.  Requisite  diligence.     §  1329. 

2.  Rules  of  1871;  Geneva  Award.     §  1330. 
VIII.  State  of  belligerency. 

1.  Essential,  as  against  titular  government.     §  1331. 

2.  Not  essential,  as  against  disturljers  of  jjeace.     §  1332. 
IX.  Effect  of  armistice.     §1333. 

X.  Respect  due  to  neutral  territory. 

1.  Inviolability.     §  1334. 

2.  Duty  to  prevent  violations.     §  1335. 
XI.  Rights  of  neutral  trade.     §  1336. 


CHAPTER  I. 
INTERNATIONAL  LAW, 

I.  Its  origin  and  obligation,  §  1. 
Early  treatise.*. 

The  term  "international  law." 
Sources  of  authority. 
Nature  and  force  of  ol)ligation. 
Effect  of  usage. 
Presumption  as  to  a.*sent. 
II.   Fart  of  the  law  of  the  land,  §  2. 
Judicial  declarations. 
Opinions  of  statesmen. 
Question  of  proof. 

I.     ITS  ORKilX  AM)  OHLIGAriOX. 

§  1- 

Theiv  i.s  no  precise  time  at  which  it  may  be  .■^aid  that  the  bodj-  of 

rules  which  regulate,  under  the  title  of  international 

Early  treatises.  ,  ^i       •    ^  "  j-        i.-  •    ^     \     •  t 

[aw.  the  intercourse  of  nations,  came  into  lieing.  Asa 
science  it  assumed  a  definite  foi"m  in  the  sixteenth  and  seventeenth  cen- 
turies, in  the  works  of  the  great  philosophical  jurists,  of  whom  Grotius 
is  the  most  illustrious."  The.se  works  are  distinguished  ))y  the  blend- 
ing of  moral  principles  as  discovered  l)v  rea.son  and  revelation  with 
positive  law  and  custom  as  foiuul  in  the  jurisprudence  of  nation.s 
and  their  practices.  The  first  constituted  what  was  called  the  law  of 
nature  {jn.^  ii(it>ii'<i')\  the  second,  the  law  of  nations  (yw-v  gentium). 
Hence  the  title  of  .some  of  the  treatises — the  Law  of  Nature  and  of 

"  His  great  work,  I)e  Jure  Belli  ac  Pacis,  was  published  in  lti25.  "  He  claims," 
.-iays  Whewell,  "to  be  the  first  who  had  reduced  International  Law  to  the  form  of 
an  art  or  science.  Nor  do  I  conceive  that  tliis  claim  goes  l)eyond  his  due."  ((-irotius 
on  the  Rights  of  War  and  Peace:  an  abridged  translation,  editor's  preface,  X.) 
Professor  Holland,  referring  to  Albericus  Gentilis's  De  Jure  Belli  libri  tres  (1598), 
states  that  these  three  books  "supply  the  model  and  framework  of  the  first  and  third 
books  of  Grotius,"  but  adds:  "  I  am  by  no  means  con(erne<l  to  place  Gentilis  on  a 
level  with  his  undenial)ly  greater  follower."  (."Studies  in  Int.  Law,  23.)  See,  also, 
Sir  James  Mackintosh,  A  Discourse  on  the  Study  of  the  Law  of  Nature  and  Nations; 
We.stlake,  Int.  Law,  .3(l-3»3;  Walker,  History  of  the  Law  of  Nations.  I.,  chap,  iii.; 
Rivier,  Note  sur  la  Litterature  du  Droit  des  Gens  avant  la  I'ublication  dn  Jus  Belli 
ac  Pacis  de  Grotius,  1625. 

H.  Doc.  551 1  1 


2  INTERNATIONAL    LAW.  [§  1. 

Nations.  Of  the  positive  element  of  the  new  science  the  Roman  civil 
law  was  the  chief  source,  since  it  was  the  foundation  of  the  jurispru- 
dence of  the  countries  of  continental  Europe,  whose  laws  and  practices 
were  chiefly  consulted. 

Tt  is  thus  apparent  that  from  the  beginning  the  science  in  question 

denoted  something  more  than  the  positive  legislation 
^MonTi  law^"''"*"  «^   independent  states,  and  the  term  -international 

law."  which  has  in  recent  times  so  generally  super- 
seded the  earlier  titles,  serves  to  emphasize  this  fact.  It  denotes  a 
body  of  obligations  which  is.  in  a  sense,  independent  of  and  superior 
to  such  legislation.  The  Government  of  the  United  States  has  on 
various  occasions  announced  the  principle  that  international  law.  as  a 
system,  is  binding  upon  nations,  not  merely  as  something  to  which 
they  may  be  tacitly  assumed  to  have  agreed,  but  also  as  a  funda- 
mental condition  of  their  admission  to  full  and  equal  participation  in 
the  intercourse  of  civilized  states. 

Though  on  many  subjects  the  rules  of  international  law  are  clear 

and  precise,  vet.  as  often  happens  with  municipal 
Sources  of  authority.    ,  ,,  i     '         i-      i  i      4.  a-      1  i 

law,  the  rule  applicable  to  a  particular  case  may  be 

uncertain  and  difficult  of  ascertainment.  In  such  cases  an  appeal  is 
made  to  the  authority  of  writers;  to  the  provisions  of  treaties  disclos- 
ing a  consensus  of  opinion;  to  the  laws  and  decrees  of  individual 
states  regulating  international  conduct;  to  the  decisions  of  interna- 
tional tribunals,  such  as  boards  of  arbitration;  and  to  the  judgments 
of  prize  courts,  and  of  ordinary  municipal  courts,  purporting  to  be 
declaratory  of  the  law  of  nations. 

"The  law  of  nations  is  the  great  source  from  which  we  derive  those 
rule>.  respecting  belligerent  and  neutral  rights,  which  are  recognized 
b}-  all  civilized  and  commercial  states  throughout  Europe  and  America. 
This  law  is  in  part  unwritten,  and  in  part  conventional.  To  ascertain 
that  which  is  imwritten.  we  resort  to  the  great  principles  of  reason  and 
justice:  but.  as  these  principles  will  be  differently  understood  by  dif- 
ferent nations  under  different  circumstances,  we  consider  them  as 
being,  in  some  degree,  fixed  and  rendered  stable  by  a  series  of  judicial 
decisions.  The  decisions  of  the  courts  of  every  country,  so  far  as  they 
are  founded  upon  a  law  common  to  every  country,  will  be  received, 
not  as  authority,  but  with  respect.  The  decisions  of  the  courts  of 
every  country  show  how  the  law  of  nations,  in  the  given  case,  is  under- 
stood in  that  country,  and  will  be  considered  in  adopting  the  rule 
which  is  to  prevail  in  this." 

Marshall,  ('.  .T..  Thirty  Hogsheads  of  Sugrar  >:  Boyle  ( ISlo),  9  ('ranch,  191,  198. 

The  intercourse  of  the  United  States  with  foreign  nations,  and  the 
policy  in  regard  to  them,  being  placed  by  the  Constitution  in  the  hands 


§  1.]  ORIGIN    AND    OBLIGATION.  3 

of  the  Federal  Government,  its  decisions  upon  these  subjects  are,  by 
a  universally  acknowledged  principle  of  international  law,  obligatory 
upon  every  citizen  of  the  Union. 

Kennett  v.  Chambers  (1852),  14  Howard,  38. 

''Many  of  the  usages  which  prevail,  and  which  have  the  force  of  law, 
doubtless  originated  in  the  positive  prescriptions  of  some  single 
state,  which  were  at  first  of  limited  effect,  but  which  when  generally 
accepted  became  of  universal  obligation.  The  Rhodian  law  is  sup- 
posed to  have  been  the  earliest  system  of  marine  rules.  It  was  a  code 
for  Rhodians  only,  but  it  soon  became  of  general  authority  because 
accepted  and  assented  to  as  a  wise  and  desirable  S3'stem  by  other 
maritime  nations.  The  same  may  be  said  of  the  Amalphitan  table, 
of  the  ordinances  of  the  Hanseatic  League  and  of  part  of  the  marine 
ordinances  of  Louis  XIV.  The}'  all  became  the  law  of  the  sea,  not 
on  account  of  their  origin,  but  by  reason  of  their  acceptance  as  such. 
And  it  is  evident  that  unless  general  assent  is  elBcacious  to  give  sanc- 
tion to  international  law,  there  never  can  be  that  growth  and  develop- 
ment of  maritime  rules  which  the  constant  changes  in  the  instruments 
and  necessities  of  navigation  require.  Changes  in  nautical  rules  have 
taken  place.  How  have  they  been  accomplished,  if  not  by  the  concur- 
rent assent,  express  or  understood,  of  maritime  nations?  When, 
therefore,  we  find  such  rules  of  navigation  as  are  mentioned  in  the 
British  orders  in  council  of  January  9th,  1863,  and  in  our  act  of  Con- 
gress of  ISO'i,  accepted  as  obligatory  rules  b}-  more  than  thirty  of  the 
principal  commercial  states  of  the  world,  including  almost  all  which 
have  any  shipping  on  the  Atlantic  Ocean,  we  are  constrained  to  regard 
them  as  in  part,  at  least,  and  so  far  as  relates  to  these  vessels,  the  laws 
of  the  sea,  and  as  having  been  the  law  at  the  time  when  the  collision 
of  which  the  libellants  complain  took  place.  This  is  not  giving  to  the 
statutes  of  any  nation  extraterritorial  effect.  It  is  not  treating  them 
as  general  maritime  laws,  but  it  is  recognition  of  the  historical  fact 
that  by  common  consent  of  mankind  these  rules  have  been  acquiesced 
in  as  of  general  obligation.  Of  that  fact  we  think  we  may  take  judicial 
notice.  Foreign  municipal  laws  must  indeed  be  proved  as  facts,  but 
it  is  not  so  with  the  law  of  nations." 

The  Scotia  (1871),  14  Wall.  170,  187,  Mr.  Justice  Strong  delivering  the  opinion 
of  the  court.  This  case  was  one  of  a  collision  between  an  American  and 
a  British  ship. 

See  also  The  Scotland  (1881),  105  U.  S.  24;  The  New  York  (1899),  175  U.  S.  187. 

"International  law  is  part  of  our  law,  and  must  be  ascertained  and 
administered  by  the  courts  of  justice  of  appropriate  jurisdiction  as 
often  as  questions  of  right  depending  upon  it  are  duly  presented  for 
their  determination.     For  this  purpose,  where  there  is  no  treaty  and 


4  INTERNATIONAL    LAW.  [§  1. 

no  controllint.'  executivo  or  legislative  act  or  judicial  decision,  resort 
must  be  had  to  the  customs  and  usages  of  civilized  nations,  and,  as 
evidence  of  these,  to  the  works  of  jurists  and  commentators,  who.  In- 
years  of  labor,  research,  and  experience,  have  made  themselves  pecu- 
liarly well  ac<iuainted  with  the  subjects  of  which  they  treat.  Such 
works  are  resorted  to  by  judicial  tribunals,  not  for  the  speculations  o+" 
their  author  concerning  what  the  law  ought  to  be.  but  for  trustworthy 
evidence  of  what  the  law  really  is.  Hilton  v,  Guyot^  159  U.  S.  113. 
168,  lH-1,  214.  L>15. 

"Wheaton  places  among  the  principal  sources  of  international  law, 
'Text- writers  of  authority,  showing  what  is  the  approved  usage  of 
nations,  or  the  general  opinion  respecting  their  mutual  conduct,  with 
the  definitions  and  modifications  introduced  l)y  general  consent.'  As  to 
these  he  forcibly  ol)serves:  '  Without  wishing  to  exaggerate  the  impor- 
tance of  these  writers,  or  to  substitute  in  any  case  their  authority  for 
the  principles  of  reason,  it  may  ])e  affirmed  that  they  are  generally 
impartial  in  their  judgment.  They  are  witjiess  of  the  sentiments  and 
usages  of  civilized  nations,  and  the  weight  of  their  testimony  increases 
every  time  that  their  authority  is  invoked  by  statesmen,  and  every 
year  that  passes  without  the  rules  laid  down  in  their  works  ))eing 
impugned  by  the  avowal  of  contrary  principles."  Wheaton's  Inter- 
national Law  (8th  ed.),  S  15. 

"Chancellor  Kent  says:  '  In  the  absence  of  higher  and  more  authori- 
tative sanctions,  the  ordinances  of  foreign  states,  the  opinions  of  emi- 
nent statesmen,  and  the  writings  of  distinguished  jurists  are  regarded 
a-<  of  great  consideration  on  questions  not  settled  by  conventional  law. 
In  cases  where  the  |)rincipal  jurists  agree  the  presumption  will  be  very 
great  in  favor  of  the  solidity  of  their  maxims,  and  no  civilized  nation 
that  does  not  an-ogantly  set  all  ordinary  law  and  justice  at  defiance  will 
venture  to  disivgard  the  uniform  sense  of  the  established  writers  on 
international  law.*      1  Kent  Com..  IS." 

(iray,  .1..   ilclivfrin^'  tin-  opiiiidii  of  the  court,  The  I'acjuete  Hahana  ( 19(X)), 
175  r.  S.  TOO. 

"The  municipal  laws  of  a  country  can  not  change 

Nature  and  force  of  ^jj,,  y^^^.  ,,f  „.iti()ns  so  as  to  bind  the  subjects  of  another 
obligation.  .         ,,  ■' 

nation." 

('a.<e  of    tlie   Kef^olutioii,  Federal   court  of  ai)peal.«  ( 1781 ),  L' Dalla.«,  1,  4.     See 
also  Le  Louis,  2  I)o<lson's  A(liii.28!». 

Nations  may.  by  their  nuinici])al  law,  facilitate  or  improve  the  exe- 
cution of  the  law  of  nation.-^  by  any  means  they  shall  think  best,  '"pro- 
vidinl  th(»  great  univ«'rsal  law  remains  unaltered." 

McKean,  ('.  .!.,  in   R<jss  /.  Kittenhou.«e,  supreme  court  of  Pa.  (1792),  2  Dallaf?, 
160. 


§  1.]  ORIGIN    AND    OBLIGATION.  5 

"When  the  United  States  declared  their  independence,  the}' were 
bound  to  receive  the  law  of  nations  in  its  modern  state  of  purit}'  and 
refinement." 

Wilson,  J.,  in  Ware  r.  Hylton  (1796),  3  Dallas,  199,  281. 

''The  law  of  nations  may  be  considered  of  three  kinds,  to  wit.  ge)i- 
eraU  conventional^  or  euMomary.  T\iq  jirxt  is  i(nh'c/:sal,  or  established 
by  the  general  consent  of  mankind,  and  binds  all  nations.  The  .second 
is  founded  on  exprtfss;  consent,  and  is  not  universal,  and  only  binds 
those  nations  that  have  assented  to  it.  The  third  is  founded  on 
TACIT  consent,  and  is  only  obligatory  on  those  nations  who  have 
adopted  it." 

Chase,  J.,  in  Ware  v.  Ilylton  (1796),  .S  Dallas,  199,  227. 

'*An  act  of  Congress  ought  never  to  be  construed  to  violate  the  law 
of  nations  if  any  other  possible  construction  remains." 

Marshall,  C.  J.,  Murray  v.  Schooner  Charming  Betsey  (1804),  2  Cranch,  64, 
118.  See  also  Talbot  r.  Seeman,  1  Cranch,  1;  Little  r.  Barreme  (1804), 
2  Cranch,  170. 

'•  Undoubtedly  no  single  nation  can  change  the  law  of  the  sea.  That 
law  is  of  universal  obligation,  and  no  statute  of  one  or  two  nations  can 
create  obligations  for  the  whole  world.  Like  all  the  laws  of  nations 
it  rests  upon  the  consent  of  civilized  communities.  It  is  of  force,  not 
because  it  was  prescribed  by  any  superior  power,  but  because  it  has 
})een  generally  accepted  as  a  rule  of  conduct.  Whatever  may  have 
been  its  origin,  whether  in  the  usages  of  navigation  or  in  the  ordinances 
of  maritime  states,  or  in  l)oth.  it  has  become  the  law  of  the  sea  only 
l)y  the  concurrent  sanction  of  those  nations  who  may  be  said  to  con- 
stitute the  commercial  world." 

The  Scotia  (1871),  14  Wall.  170,  187. 

"Every  nation,  on  being  received,  at  her  own  request,  into  the  cir- 
cle of  civilized  governments,  must  understand  that  she  not  onh' attains 
rights  of  sovereignty  and  the  dignity  of  national  character.  ])ut  that 
she  binds  herself  also  to  the  strict  and  faithful  observance  of  all  those 
principles,  laws,  and  usages  which  have  obtained  currency  among 
civilized  states,  and  which  have  for  their  object  the  mitigation  of  the 
miseries  of  war. 

"No  community  can  be  allowed  to  enjoy  the  benefit  of  national 
character  in  modern  times  without  su]>mitting  to  all  the  duties  which 
that  character  imposes.  A  Christian  people  who  exercise  sovereign 
power,  who  make  treaties,  maintain  diplomatic  relations  with  other 
states,  and  who  should  yet  refuse  to  conduct  their  militar}-  operations 


6  INTERNATIONAL    LAW.  [§  1. 

according  to  the  usages  universalh"  observed  by  such  states,  would 
present  a  character  singularly  inconsistent  and  anomalous." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Thompson,  minister  to  Mexico,  April  15, 
1842,  Webster's  Works,  VI.  437. 

If  a  government  ""confesses  itself  unable  or  unwilling  to  conform 
to  those  international  obligations  which  must  exist  between  established 
governments  of  friendly  stjites,  it  would  thereby  confess  that  it  is  not 
entitled  to  be  regarded  or  recognized  as  a  sovereign  and  independent 
power." 

Mr.  Evart.s,  Sec.  of  State,  to  Mr.  Foster,  August  2,  1877,  MS.  Instr.,  Mexico, 
XIX.  357. 

jx  municipal  decree,  whether  executive,  legislative,  or  judicial,  con- 
travening the  law  of  nations  has  no  extraterritorial  force. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Wing,  April  19, 1871,  MS.  Inst.  Ecuador,  I.  270; 
Mr.  Evarts,  Sec.  of  State,  to  Mr.  Brunetti,  Oct.  23,  1878,  MS.  Notes  to 
Spain,  IX.  558;  Mr.  Bayard,  Sec.  of  State,  to  Mr.  McLane,  June  23,  1886, 
MS.  Instr.,  France,  XXI.  330;  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Connery, 
Nov.  7,  1887,  For.  Rel.  1887,  p.  751;  Moore,  Report  on  Extraterritorial 
Crime,  Government  Printing  Office,  1887,  and  For.  Rel.  1887,  pp.  757-840; 
Moore,  International  Arbitrations,  III.,  chap.  Iviii.  3070-3160. 

In  1888  the  Congress  of  Ecuador  passed  a  law  declaring,  among 
other  things,  that  the  nation  was  not  responsible  for  losses  and  dam- 
ages caused  ])y  the  enemy,  either  in  a  civil  or  an  international  war,  or 
b}'  mobs,  riots,  or  mutinies;  nor  for  losses  and  damages  caused  by  the 
Government  in  its  military  operations,  or  in  the  measures  which  it 
might  adopt  for  the  restoration  of  pu))lic  order;  nor  for  losses  or 
damages  conse(iuent  upon  measures  adopted  by  the  Government 
toward  natives  or  foreigners,  involving  their  arrest,  banishment, 
impi'isoiiment,  detention,  or  extradition,  whenever  the  exigencies  of 
public  order  or  a  compliance  with  treaties  with  neighboring  nations 
should  require  such  action;  and  that  no  person,  whether  native  or 
foreign,  should  have  an\'  right  of  indemnity  in  such  cases.  The  diplo- 
matic corps  at  Quito  protested  against  the  act  as  "contrary  to  the  law 
of  nations."  The  Government  of  the  United  States,  when  advised  of 
the  provisions  of  the  statute,  pronounced  them  "generally  and  sub- 
stantially subversive  of  the  principles  of  international  law  by  which, 
and  not  by  domestic  legislation,  the  ultimate  liability  of  governments 
to  one  another  nuist  })e  determined;"  and  declared  that  "by  such  a 
declaration  of  rules  for  the  guidance  of  her  conduct  in  international 
relations  Ecuador  places  herself  outside  of  the  pale  of  international 
intercourse." 

Mr.  Rives,  Aa«ist.  Sec.  of  State,  to  Mr.  McGarr,  Oct.  24,  1888,  For.  Rel.  1888, 
Part  1,  i>.  490;  Mr.  Rives,  Acting  Sec.  of  State,  to  Mr.  Walker,  Oct.  23, 
1888,  For.  Rel.  1888,  Part  1,  p.  492. 


§  1.]  ORIGIN    AND    OBLIGATION.  7 

'"The  statesmen  and  jurists  of  the  United  States  do  not  regard  inter- 
national law  as  having  become  binding  on  their  country  through  the 
intervention  of  any  legislature.  They  do  not  believe  it  to  be  of  the 
nature  of  immemorial  usage,  'of  which  the  memory  of  man  runneth 
not  to  the  contrar3\'  They  look  upon  its  rules  as  a  main  part  of  the 
conditions  on  which  a  state  is  originally  received  into  the  family  of 
civilized  nations.  This  view,  though  not  quite  explicitly  set  forth, 
does  not  reallv  differ  from  that  entertained  l)y  the  founders  of  inter- 
national law,  and  it  is  practically  that  submitted  to,  and  assumed  to  be 
a  sufficiently  solid  basis  for  further  inferences,  by  governments  and 
law3^ers  of  the  civilized  sovereign  communities  of  our  day.  If  the}^ 
put  it  in  another  way  it  would  probably  be  that  the  state  which  dis- 
claims the  authority  of  international  law  places  herself  outside  the 
circle  of  civilized  nations." 

Maine,  International  Law,  37-38.  Tiiis  interpretation  by  Sir  Henry  Maine  of 
the  position  of  the  United  States  is  strikingly  sagacious,  since  it  expresses 
that  position  in  terms  substantially  the  same  as  those  employed  by  the 
Department  of  State  in  the  case  of  Ecuador  {supra) ,  almost  at  the  moment 
when  his  work  was  issuing  from  the  press  and  naturally  without  knowl- 
edge of  its  contents. 

Sir  Henry  Maine  discusses,  at  pp.  38-45,  Queen  v.  Keyn,  often  called  the  case 
of  the  Franconia,  L.  R.  2  Exch.  Div.  63,  a  case  which,  though  often 
referred  to  as  denying  the  authority  of  international  law,  was  decided 
"upon  grounds  of  municipal  and  not  of  internationallaw."  (Hall,  Int. 
Law,  4th  ed.  213,  note.)  See  also,  as  to  the  origin  and  obligation  of  inter- 
~  national  law,  Phillimore,  Int.  Law,  1st  ed.,  preface,  and  2d  ed.,  I.  75-77; 
Black,  At.-Cien.  (1859),  9  Op.  358. 

The   law  of  nations   is   "to  ])e  tried  by  the  test  of   usage.     That 
^„       ^  which  has  received  the  assent  of  all  must  be  the  law 

Effect  of  usage. 

^      of  all.'^ 

Marshall,  C.  J.,  The  Antelope  (1825),  10  Wheat.  66,  120-121. 

Referring  to  the  .statement  of  Lord  Stowell,  in  T/ie  Young  Jacob 
and  Johanna^  1  C.  Rob.  20,  that  a  certain  custom  which  had  been 
observed  in  former  wars  "was  a  rule  of  comity  only,  and  not  of  legal 
decision,'-  the  court  said: 

"Assuming  the  phrase  'legal  decision'  to  have  been  there  used  in 
the  sense  in  which  courts  are  accustomed  to  use  it,  as  equivalent  to 
•judicial  decision,"  it  is  true  that,  so  far  as  appears,  there  had  been  no 
such  decision  on  the  point  in  England.  The  word  '  comity'  was  appar- 
ently used  b\'  Lord  Stowell  as  synonymous  Mith  courtesy  or  good  will. 
Bat  the  period  of  a  hundred  years  which,  has  since  elajjsed  is  amply 
sufficient  to  have  enabled  v^hat  originally  may  ha've  rested  in  custom  or 
comity,  courtesy  o^r  concession,  to  groio,  hy  the  genei'cd  assent  of  civilized 
nations,  into  a  settled  rule  of  international  law.  As  was  well  said  by 
Sir  James  Mackintosh,   'In  the  present  century  a  slow  and  silent  but 


8  INTERNATIONAL    LAW.  [§  1- 

verv  substantial  luitio-ation  has  taken  place  in  the  practice  of  war,  and 
in  propoi'tion  as  that  mitigated  practice  has  received  the  sanction  of 
time  it  is  raised  fi'om  the  rank  of  mere  usat>fe.  and  l)ecomes  a  part  of 
the  law  of  nations.*  Discourse  on  the  Law  of  Nations,  88;  1  Miscel- 
laneous Works,  8()(t."" 

(iray,  .1.,  lU'livering  the  opinion  of  the  court,  The  Paqaeta  Habana  (19(X)), 
175  r.  S.  ()94,  liolding  that  coast-tisliing  ver^nely,  engaged  in  eatcliing  and 
l)ringing  in  fresh  fish,  are  exempt  from  capture  as  prize  of  Avar.  The 
italics  in  the  alx)ve  passage  are  the  editor's. 

''As  lnt(M'nati()nal  law  is  a  product  of  the  special  civilization  of  mod- 
ern Europe,  and  forms  a  highh^  artiticial  system  of 
Presumption  as  to  ^yjiictj  the  principles  can  not  l)e  supposed  to  })e  under- 

assent.  '^  /  .        *• , 

stood  or  recoo-nized  ))v  countries  differently  civilized, 
such  states  only  can  be  presumed  to  be  subject  to  it  as  are  inheritors 
of  that  civilization.  They  have  lived,  and  are  living,  under  law,  and 
a  positive  act  of  withdrawal  would  be  required  to  free  them  from  its 
restraints.  But  states  outside  European  civilization  must  formally 
enter  into  the  circle  of  law-governed  countries.  They  nuist  do  some- 
thing- with  the  acquiescence  of  the  latter,  or  of  some  of  them,  which 
amounts  to  an  acceptance  of  the  law  in  its  entirety  ))eyond  all  possi- 
bility of  misconstruction.  It  is  not  enough  conse(iuently  that  they 
shall  enter  into  arrangements  by  treaty  identical  with  arrangements 
made  by  law-governed  powers,  nor  that  they  shall  do  acts,  like  send- 
ing and  receiving  permanent  embassies,  which  are  compatil)le  with 
ignoran<'e  or  rejection  of  law.     *     *     * 

"When  a  new  state  comes  into  existence  its  ])osition  is  regulated 
by  like  considerations.  If  by  its  origin  it  inherits  P^uropean  civiliza- 
tion the  })resumpti()n  is  so  high  that  it  intends  to  conform  to  law  that 
the  tirst  act  })urporting  to  be  a  state  act  which  is  done  b}'  it,  luiaccom- 
panied  l>v  warning  of  intention  not  to  conform,  must  be  taken  as  indi- 
cating an  intention  to  conform,  and  brings  it  consequently  within  the 
sphere  of  law.  If.  on  the  other  hand,  it  falls  ))y  its  origin  into  the  class 
of  states  outside  European  civilization,  it  can,  of  course,  onh'  leave 
them  by  a  formal  act  of  the  kind  already  mentioned. 

'•A  tendency  has  shown  itself  of  late  to  conduct  relations  with 
.states  which  are  outside  the  sph«>re  of  international  law  to  a  certain 
extent  in  accordance  with  its  rules;  and  a  tendency  has  also  shown 
itself  on  the  })art  of  such  states  to  expect  that  Euroj)ean  countries 
shall  behave  in  confoi'inity  with  the  standard  which  they  have  them- 
.selves  set  up.  Thus  China,  after  France  had  blockaded  Formosa  in 
1884,  comnumicated  her  expectation  that  England  would  prevent 
French  ships  from  coaling  in  British  ports.  Tacitly,  and  by  inference 
from  a  series  of  acts,  states  in  the  position  of  China  may  in  the  long 
run  ))e  l)rouofht  within  the  realm  of  law;  but  it  would  l)e  unfair  and 


§  2.]  LAW    OF    THE    LAND.  9 

impossible  to  assume,  inferentially.  acceptance  of  law  as  a  whole  from 
isolated  acts  or  even  from  frequently  repeated  acts  of  a  certain  kind." 

Hall,  Int.  Law,  4th  ed.,  42-44. 

Formerly  the  state.«  that  were  subject  and  tho.«e  that  were  not  subject  to  inter- 
national law  were  respectively  classed  as  Christian  and  non-Christian. 
By  Art.  VII.  of  the  treaty  of  Paris  of  March  80,  1856,  however,  Turkey 
was  expressly  "admitted  to  participate  in  the  advantages  of  the  public 
law  and  system  of  concert  of  Eurojje."  (Hertslet,  ^lap  of  Euroi>e  by 
Treaty,  II."  12.>4. ) 

By  the  new  treaties  which  went  into  effect  in  July  and  Augast,  1899,  "Japan's 
position  as  a  fully  independent  sovereign  power  is  assured."  (Pre.sident 
McKinley,  Annual  Mes.sage,  Dec.  5,  1899.)  Japan's  admission  into  the 
"circle  of  law-governed  countries"  was  preceded  by  various  acts  by 
which  she  recognized  the  obligations  of  international  law.  In  August, 
1870,  during  the  war  between  France  and  Germany,  she  issued  a  declara- 
tion of  neutrality.  (For.  Eel.  1870,  188.)  In  1886  the  Emperor  formally 
adhered  to  the  (Geneva  Convention.  By  an  imperial  decree  of  March  19, 
1887,  the  rules  oi  maritime  law  embodied  in  the  Declaration  of  Paris  of 
1856  were  declared  tf)  be  in  force  in  the  empire.  On  August  21,  1894, 
during  the  war  with  China,  a  law  was  promulgated  for  the  organization  of  a 
prize  court  which  was  established  at  .Sasebo.  This  law  wa.s  based  chiefly 
on  the  British  and  German  prize  acts;  and  there  was  sul)sequently  pro- 
mulgated a  prize  act,  founded  on  the  works  of  Professor  Holland  and  Sir 
Godfrey  Lushington,  the  rules  of  the  Institute  of  International  Law  of 
1882,  and  the  instructions  of  the  French  navy  of  1870.  In  the  work  of 
adaptation,  however,  Japan  made  one  salutary  improvement;  she  abol- 
ished the  interest  (jf  the  individual  captor  in  the  prize.  (See  Ariga,  La 
Guerre  sino-japonaise  au  point  de  vue  du  droit  international;  Takahashi, 
Cases  on  International  Law  during  the  Chino-Japanese  War;  Siebold, 
Japan's  Accession  to  the  Comity  of  Nations.) 

To  Hall's  statement  that  Ciiina,  in  1884,  expressed  the  expectation  that  Eng- 
land would  prevent  French  ships  from  coaling  in  British  ports,  it  is  proper 
to  add  that  the  British  Govermnent  recognized  the  belligerent  rights  of 
China  as  well  as  of  France,  and  acknowledged  toward  both  the  obligations 
of  neutrality,  issuing  to  that  end  instructions  for  the  enforcement  of  the 
foreign  enlistment  act.      (Br.  &  For.  State  Papers,  LXX VI.  1884-1885, 434. ) 


II.     I'ART  OF  THE  LAW  OF  rilK  LAND. 


The  "  privile(:^e  of  f()reio;n   ministers  and   their  domestic  servants 

depends  upon  the  law  of  nations.    The  act  of  parliament 

^""^'"h  Jr^"*"   ot'  T  Anne,  c.  12,  is  declaratorv  of  it.     All  that  is  )h'w  in 

this  act  is  the  clause  which  gives  a  summary  jurisdiction 

ioviho:  j)unishment  oithQ  infractor.^  oii\\\^\ii\\'.     *     *     *     But  the  act 

was  not  occasioned  by  any  doubt  'whether  the  laiv  of  nations^  particu- 

larh'  the  part  relative  to  public  ministers,  was  not  jx^^'t  of  the  lair  of 

England.'  and  the  infraction  criminal,  nor  intended  to  vary  an  iotii  from 

it.     I  remember  in  a  case  before  Lord  Talbot,     *     *     *     the  matter 


10  INTERNATIONAL    LAW.  [§  2. 

was  very  elaborate!}'  argued  at  the  bar,  and  a  solemn,  deliberate  opin- 
ion given  ])y  the  court.  *  *  *  Lord  Talbot  declared  a  clear  opinion, 
'That  the  latn  <>f  ruif/ofi.s,  in  its  ,/////  extent,  was  pa/'f  of  the  law  of 
Enghind.'^  "That  the  act  of  Parliament  was  declaratory;''  *  *  * 
'  that  the  law  of  nationx  was  to  be  collected  from  the  practice  of  differ- 
ent nations,  and  the  authority  of  )rr iters."  Accordingly  he  argued  and 
determined  from  such  instances  and  the  authority  of  Grothis,  Bar- 
bei/rac,  Binl'ershoel^  W/qt'tfort,  etc.,  there  being  no  Frnglish.  writer 
of  eminence  upon  the  subject.  I  was  counsel  in  this  case,  and  have  a 
full  note  of  it.  I  remember,  too,  Lord  ITardwicl'rs  declaring  his  opin- 
ion to  the  same  effect,  and  denying  that  Lord  Chief  Justice  Holt  ever 
had  any  doubt  as  to  the  law  of  nations  being  part  of  the  law  of 
En  gland." 

Lord  Mansfield,  Triquet  r.  Bath  (1764),  3  Burrows,  1478. 

To  the  same  effect,  The  Emperor  of  Austria  r.  Day  and  Kossuth  (1861),  2Gif- 
fard,  628. 

See  Blackstone,  Coram.,  B.  IV.,  eh.  5,  p.  67;  Coxe,  Judicial  Power  and  Uncon- 
stitutional Legislation,  generally. 

The  "law  of  nations''  being  "'in  its  full  extent"  a  "part  of  the  law" 
of  Pennsylvania,  to  be  "'collected  from  t\xQ  jrracticeoi  different  nations 
and  the  authority  of  tenters,''  a  citizen  of  France  was  tried,  convicted, 
and  .sentenced  at  common  law  for  an  assault  on  the  secretary  of  legation 
of  France  in  the  French  minister's  dwelling,  and  an  assault  and  battery 
on  the  .same  person  in  the  streets. 

Respuhlica  v.  De  Longchamps,  court  of  oyer  and  terminer  at  Philadelphia 

(1784),  1  Dallas,  111. 
The  same  principle  is  stated  by  i^incoln.  At. -Gen.  (1802),  5  Op.,  Appendix, 

691. 

"'If  it  be  the  will  of  the  Government  to  apply  to  Spain  any  rule 
respecting  captures  which  Spain  is  supposed  to  apply  to  us.  the  Gov- 
ernment will  manifest  that  will  by  passing  an  act  for  the  piirpo.se. 
Till  such  an  act  be  pas.>ed,  the  court  is  l)ound  by  the  law  of  nations, 
which  is  a  part  of  the  law  of  the  land." 

Marshall,  C.  .1.,  The  Xereide  (1815),  9  Cranch,  388,  423. 

Opinions  of   states-     **  The  law  of  nations  makes  an  integral  part     *     *     * 
™«°-  of  the  laws  of  the  land." 

Mr.  .Jefferson,  .'^ec.  of  State,  to  Mr.  Genet,  French  Minister,  June  5,  1793, 
Wait's  Am.  St.  Pap.  I.  30;  Am.  State  Papers,  For.  Rel.  I.  150. 

''A  question  may  be  raised — Does  this  cu.stomary  law  of  nations,  as 
esta])lished  in  Europe,  ))ind  the  United  States?  An  affirmative  answer 
to  this  is  warranted  by  conclusive  reasons. 

''  1.  The  United  States,  when  a  mem))er  of  the  British  Empire,  were, 
in  this  capacity,  a  party  to  that  law,  and  not  having  di.ssented  from  it. 


§  2.]  LAW    OF    THE    LAND.  11 

when  the\'  became  independent,  they  are  to  be  considered  as  having 
continued  a  party  to  it.  2.  The  common  law  of  England,  which  was 
and  is  in  force  in  each  of  these  States,  adopts  the  law  of  nations,  the 
positive  equalh'  with  the  natural,  as  a  part  of  itself.  3.  Ever  since  we 
have  been  an  independent  nation,  we  have  appealed  to  and  acted  upon 
the  modei'n  law  of  nations  as  understood  in  E^urope — various  resolu- 
tions of  Congress  during  our  revolution,  the  correspondence  of  execu- 
tive officers,  the  decisions  of  our  courts  of  admiralty,  all  recognized 
this  standard.  4.  Executive  and  legislative  acts,  and  the  proceedings 
of  our  courts,  under  the  present  government,  speak  a  similar  language. 
The  President's  proclamation  of  neutrality,  refers  expressly  to  the 
modern  law  of  nations,  which  must  necessarih'  be  understood  as  that 
prevailing  in  Europe,  and  acceded  to  by  this  country;  and  the  general 
voice  of  our  nation,  together  with  the  very  arguments  used  against  the 
treaty,  accord  in  the  same  point.  It  is  indubitable,  that  the  customary 
law  of  European  nations  is  as  a  part  of  the  common  law,  and,  by  adop- 
tion, that  of  the  United  States." 

Hamilton,  Letter?  of  Camillus,  No.  20,  Lodge's  Hamilton,  V.  89;  Hamilton's 
e<l.,  YIL  349. 

"Offences  committed  in  the  territorial  jurisdiction  of  a  nation  may 
be  tried  and  punished  there,  according  to  the  definitions  and  penalties 
of  its  municipal  law.  which  becomes  for  the  particular  purpose  the 
international  law  of  the  case." 

Report  of  Mr.  Bayard,  Sec.  of  State,  Jan.  20,  1887,  in  the  case  of  Pelletier, 
charged  with  attempt  at  slave  trading  in  Haytian  waters,  Sen.  Ex.  Doc. 
64,  49  Cong.  2  sess;  Moore,  Int.  Arbitrations,  II.  1799. 

The  law  of  nations,  unlike  foreign  municipal  laws, 
ftuestion  of  proof.     -,  .  i  -      i  i  j-     • 

does  not  have  to  be  proved  as  a  tact. 

The  Scotia,  14  Wallace,  170;  The  New  York  (1899),  175  U.  S.  187. 

In  Talbot  v.  Seenian  (1801),  1  Cranch,  1,  37,  it  was  held  that  certain  French, 
decrees,  including  that  of  January  18,  1798,  affecting  neutral  commerce 
' '  having  been  promulgated  in  the  United  States  as  the  law  of  France,  by 
the  joint  act  of  that  department  which  is  intrusted  with  foreign  inter- 
course, and  of  that  which  is  invested  with  the  powers  of  war,  seems  to 
a.ssume  a  character  of  notoriety  which  renders  it  admissible  in  our  courts." 


CHAPTER  II. 

STATES:  THEIR  CHARACTERISTICS  AND  CLASSIFICATION. 

I.  Definition's  of  the  State,  §  8. 
General  definitions. 
Particular  elements. 
Excluded  a.ssociations. 
Principles  of  inclusion  and  exclusion. 
Protected  princes  of  India. 
Colonial  possessions. 

II.    SoVEKEUiNTY    AND    INDEPENDENCE,    §  4. 

Ideas  of  sovereignty  and  indejiendence. 
Beginning  of  sovereign  existence. 
Internal  and  external  sovereignty. 
National  obligations. 
External  influence. 
External  guarantees. 
III.  ("lassifkation  t)F  States. 

1.  Simple  states,  §  5. 

Their  characteristic. 

(1 )  Single  states,  §  (5. 

(2)  IVrsonal  union.  §  7. 

2.  ('omiK>site  states,  §  S.  , 

(1)  Real  union,  §  9. 

(2)  Confederation,  §  10. 
(.3)   Federal  union,  §  11. 

I'nited  States  of  America, 
(ierman  Empire:  Switzerland. 
8.   Neutralized  states,  §  12. 

Belgium,  Ionian  Islands,  Savoy,  Switzerland. 

Luxemburg. 

Congo. 

Samoa. 

4.  Semi-sovereign  states  and  {irotectorates. 

(1  )  Semi-sovereign  states,  §  18. 

Suzerain  and  subject. 

Egypt,  P>ulgaria,  Transvaal,  and  other  examples. 
(2)   Protected  states  and  protectorates,  §  14. 

Ionian  Islands,  .\ndorra,  San  Marino,  Monaco. 

Countries  not  possessing  European  civilization. 

5.  .\merican  Indians. 

(1)  Their  dej)endent  relation,  §  15. 

"Domestic  dependent  nations." 
Subjection  to  Federal  legislation. 
12 


CONTENTS    OF    CHAPTER    II.  13 

III.  C1.AS.SIFICAT10X  OF  States — Continued. 

5.  American  Indians?— Continued. 

(1)  Their  dependent  relation,  §  15 — Continued. 

Eminent  domain. 

Domestic  subjects,  not  citizens. 

Local  self-government. 

Comparison  with  native  states  of  India. 

Commerce  with  aboriginal  tribes. 

(2)  Inability  to  transmit  title,  §  16. 

(3)  Treaties,  §  17. 

6.  The  Holy  See,  §  18. 

IV.  The  State  and  its  Goverx.mext. 

1.  Distinction  between  State  and  Government,  §  19. 

2.  De  facto  governments. 

( 1 )  Different  kinds,  §  20. 

Classification  and  powers. 
Insurrection  and  revolt. 

(2)  Military  occupation,  §  21. 

By  recognized  government:  Castine. 
Tampico. 

California  and  New  Mexico. 
New  Orleans. 
Cuba  and  the  Philippines. 
Continuation  of  powers  after  annexation. 
Occupation  by  insurgents:  Mazatlan. 
Bluefields. 
i'.i)  The  Confederate  States,  §  22. 

De  facto  supremacy;  effects  and  limitations. 
Confederate  and  State  governments. 
Capacity  to  take  and  hold  property. 
Sequestration  and  confiscation  acts. 
Summary  of  judicial  decisions. 
Confederate  debts  and  obligations. 
V.  RuiHTs  and  Dities  ok  States. 

1 .  Fundamental  rights  and  duties,  §  23. 

(reneral  summary. 
Ke^iuirement  of  "due  diligence." 

2.  Equality,  §  24. 

3.  Property. 

(1)  Ownership  and  transfer,  §  25. 

(2)  Succession  in  case  of  unsuccessful  revolt,  §  26. 


I.     DEFINITIONS  OF  THE  STATE. 

International  law  i.s  concerned  with  the  relations  of  stiites  which 

constitute  the  society  of  nations.     In  this  sense  the 
General  definitions.  j  "  i.    j.  j.    v       j  t;'      i-       ti  i  i 

words     state     and     nation     are  used  synonymously, 

without  regard  to  the  distinction  which  political  science  draws  between 
them.  The  word  state,  as  used  in  international  law,  has  been  vari- 
ously defined.  Most  of  the  definitions  of  the  publicists  ma}',  however, 
be  traced  back,  in  substance  if  not  in  form,  to  Cicero,  who,  in  his  De 
Be  PuhUca.,  defines  the  "populus"  as  a  numerous  society  united  by  a 
common  sense  of  right  and  a  mutual  participation  in  advantages."  In 
almost  the  same  words  Grotius  defined  the  state  {clvitas)  as  a  perfect 
society  of  free  men,  united  for  the  promotion  of  right  and  the  com- 
mon advantage.*  Pufendorf  propounded  the  idea,  which  has  been  so 
generall}^  adopted,  of  treating  the  state  as  a  moral  person,  endowed 
with  a  collective  will.^  According  to  Vattel,  a  nation  or  state  is  a 
body  politic  or  society  of  men  who  seek  their  well-being  and  common 
advantage  in  the  combination  of  their  forces.^  This  definition  is  sub- 
stantially adopted  by  AA'heaton.*  But  it  must  be  admitted  that  all  the 
foregoing  definitions  are  imperfect,  and  that  the}'  can  be  accepted  only 
with  certain  limitations. 

"For  all  purposes  of  international  law,  a  state  {dfjpio^^  civitas,  volk) 

may  be  defined  to  be  a  people  permanently  occupying 
Particular  elements.        ii       a    t.        -j.  i       j.  j      \    \  jiiLi. 

a  fixed  territory  {certain  sedem),  bound  together  by 

common  laws,  habits,  and  customs  into  one  body  politic,  exercising, 

«  Est  igitur  res  publica  res  populi:  populus  auteni  non  omnia  hominum  coetus  quo- 
quo  nio(lf)  con^refjatus,  .'<e<l  e<ptus  niultitudinis  juris  ('on.«ensu  et  utilitatis  eommunione 
sociatus.  (De  Re  Ptililica,  Lib.  I.  XXV.  39,  M.  Tullii  Ciceronis Ojiera Omnia,  Nobl>e, 
Lipsias  A.  I).  1850,  p.  1178.) 

''Est  autem  c-ivitas  (-(Rtus  perfectus  liberorum  hominum,  juris  fruendi  et  communis 
utilitatis  caiva  sociatus.     (De  Jure  Belli  ac  Pacis,  L.  I.  c.  I.  §  XIV.  No.  2.) 

<^C'est  une  personne  morale  compo.«ee,  dont  la  volonte  formee  par  I'assemblage  des 
volontes  de  plusieurs,  reunies  en  vertu  de  leurs  conventions,  est  n'-put^e  la  volonte  de 
tons  gen^'Tak'nient,  et  autorisee  par  cette  raison  tl  se  servir  des  forces  et  des  facult^s  de 
chaque  particulier  pour  procurer  la  paix  et  la  surety  commune.  (Le  Droit  de  la 
Nature  et  des  (Jens.,  trad,  par  Barljeyrac,  VII.  c.  2,  §  1.3.) 

''Prelim.,  §  1;  L.  I.  ch.  1,  §  1. 

''  "A  body  politic,  or  society  of  men,  united  together  for  the  purpose  of  promoting 
their  nmtual  safety  and  advantage  by  their  combined  strength."     Elements  of  Inter- 
national Law,  C.  II.  §  2.     Both  in  I>a\vrence's  and  in  Dana's  edition  of  Wheaton  the 
definition  of  Cicero  is  quoted  erroneously. 
14 


§3.]  DEFINITIONS    OF    THE    STATE.  15 

through  the  medium  of  an  organized  government,  independent  sover- 
eignty and  control  over  all  persons  and  things  within  its  boundaries, 
capable  of  making  war  and  peace,  and  of  entering  into  all  international 
relations  with  the  other  communities  of  the  globe.  It  is  a  sound  gen- 
eral principle,  and  one  to  be  laid  down  at  the  threshold  of  the  science 
of  which  we  are  treating,  that  international  law  has  no  concern  with 
the  form,  character,  or  power  of  the  constitution  or  government  of  a 
state,  with  the  religion  of  its  inhabitants,  the  extent  of  its  domain,  or 
the  importance  of  its  position  and  influence  in  the  commonwealth  of 
nations.  'Russia  and  Geneva  have  equal  rights.'"  *  *  *  p^.Q. 
vided  that  the  state  possess  a  government  capable  of  securing  at  home 
the  observance  of  rightful  relations  with  other  states,  the  demands  of 
international  law  are  satisfied."' 

Phillimore,  Int.  Law,  3rd  ed.,  I.  81. 

Excluded  associa-  The  definition  of  the  state  must  be  "understood  with 
tions.  the  following  limitations: 

'*1.  It  must  be  considered  as  excluding  corporations,  public  or  pri- 
vate, created  by  the  state  itself,  under  whose  authority  the}'  exist, 
whatever  may  be  the  purposes  for  which  the  individuals  composing 
such  bodies  politic  ma}'  be  associated. 

"Thus  the  great  association  of  British  merchants  incorporated,  first, 
by  the  crown,  and  afterwards  by  Parliament,  for  the  purpose  of  carry- 
ing on  trade  to  the  East  Indies,  could  not  be  considered  as  a  state, 
even  whilst  it  exercised  the  sovereign  powers  of  war  and  peace  in  that 
quarter  of  the  globe  without  the  direct  control  of  the  crown,  and 
still  less  can  it  V)e  so  considered  since  it  has  been  subjected  to  that  con- 
trol. Those  powers  are  exercised  by  the  East  India  Company  in  sub- 
ordination to  the  supreme  power  of  the  British  Empire,  the  external 
sovereignty  of  which  is  represented  by  the  company  towards  the 
native  princes  and  people,  whilst  the  British  government  itself  repre- 
sents the  company  towards  other  foreign  sovereigns  and  states. 

'*2.  Nor  can  the  denomination  of  a  state  be  properly  applied  to 
voluntary  associations  of  robbers  or  pirates,  the  outlaws  of  other 
societies,  although  they  may  })e  united  together  for  the  purpose  of 
promoting  their  own  mutual  safety  and  advantage. 

"■3.  A  state  is  also  distinguishable  from  an  unsettled  horde  of 
wandering  savages  not  yet  formed  into  civil  society.  The  legal  idea 
of  a  state  neces.'^arily  implies  that  of  the  habitual  obedience  of  its 
members  to  tho.se  persons  in  whom  the  superiority  is  vested,  and  of  a 
fixed  aV)ode,  and  definite  territory  ])elonging  to  the  people  by  whom  it 
is  occupied.'" 

Wheaton,  Elements  of  Int.  Law,  Chap.  II,  §  2.  See,  a.s  to  migratory  hordes, 
bands  of  pirates,  .societies  nnited  srelerl.'f  ransa,  and  the  former  piratical 
states  of  northern  Africa,  Phillimore,  Int.  Law,  8rd  ed.,  I.  82-S.=). 

"Marshall,  C.  J.,  The  Antelope,  10  Wheaton,  66. 


16  sTAT?:s:  characteristics  and  classification.         [§  3. 

Kivior.  in  his  treatise  on  international  law,"  enumerates,  as  ^  the  essen- 
tial elements  of  the  state,"  which  he  defines  as  "an 
Principles  of  inclu-  independent  comnuinitv,   organized  in  a  permanent 
sion  and  exclusion;  ,    .      ,      "  .,  >«  .1       1.   n        •  L^r,-, 

mannei-  on  a  certain  territory,     the  tollowmp-:       ler- 
illustrations.  .  .  n      '•  -hi 

ritorv  and  population,  collective  will  and  (government, 

independence  and  piM'inanence."  ]Ienc(>  he  excludes  from  the  catej^orv 
of  the  stat(\  which  he  describes  as  a  "moral  pcM'son "'  and  "the  subject 
of  the  law  of  nations."  a  horde  or  nomadic  tribe;  the  lu^t^ro  tribes  of 
Africaandthe  native  races  of  Australia:  the  North  American  Indians, 
although  the  Fnit(Kl  States  has  allowed  them,  on  orounds  of  expediency, 
a  certain  national  existence^;  and  chance  communities,  organized  tempo- 
rarily, such  as  l)ands  of  brigands  and  associations  of  pirates.  States, 
existing  and  recognized  as  such,  which  give  themselves  over,  accident- 
ally or  even  habitually,  to  acts  of  spoliation  and  ransom,  like  certain 
Greek  states  of  antiquity  and  later  still  the  jiredatorv  states  of  Bar- 
bary,  do  not,  he  says,  for  that  reason  cease  to  be  states.  But  an 
association  of  malefactors,  which  installed  itself  on  a  ten-itory.  could 
not  pretend  to  be  treated  as  a  nation,  ev(Mi  though  it  should  take  the 
nam(>;  war  would  not  l)e  made  upon  its  memlx'rs  according  to  the  laws 
of  war:  they  would  be  chastised  as  criminals,  and.  in  the  repression  of 
their  depredjitions  on  the  sea,  there  would  l)c  no  (|uestion  of  booty 
pro})erly  so-called  or  of  the  o))scrvance  of  the  rul(\s  of  law  in  regard 
to  prizes.  And  if  anarchists  should  undertake^  to  found  iin  establish- 
ment of  some  importance,  with  a  view  t(^  live  according  to  their  max- 
ims, it  would  not  be  a  state,  since  the  anarchist  utopia  excludes  the 
idea  of  government. 

Religious  communities,  continues  Rivier,  are  not  states:  although, 
for  special  reasons,  the  Holy  See  occupies  a  position  analogous  to  that 
of  states,  and  tiie  Po])e  is  treated  as  a  sovereign,  and  even  as  a  privi- 
leged sovereign.  Nor  do  we  recognize  the  personality  of  the  law  of 
nations  in  communities  and  corporations  whicii.  although  thev  are 
pcrmaiKMit  and  organized,  and  have  a  territ<)i"ial  seat,  are  subordinate — 
such  as  commuiK^s,  pi-o\inces,  and  colonitvs,  and  c  forfini'i  political, 
scientitic,  industrial,  and  commercial  corjiorations  and  soci(»ties.  Great 
companies.  estal)lished  for  purposes  essentially  commercial  and  indus- 
trial, may  obtain  from  the  state  charters  or  letters-patent,  delegating 
a  ])art  of  its  powiMs.  Us,  for  exann)le.  tii(^  English  compairn's  in  Africa — 
the  Royal  Nigei'  (\)nn)any  (ISSH).  the  East  African  Coni|)any  (188S), 
and  the  South  African  Company  (1SS1»).  Sucii.  also,  was  the  Hudson's 
Bay  Company,  and  es])ecially  the  East  India  Company,  which  for 
many  years  had,  undei-  the  authority  of  the  British  (iovernment,  an 
existence  analogous  to  that  of  states,  possessing  notably  the  powers 
of  })eace  and  war  with  reference  to  the  Hindus.  Noi"  was  thc^  Hanseatic 
League  a  state:  \'erv  powerful  at  certain  nionients.  it  was  oidy  a  league 


"PrincipeH  <lii  Druit  dcH  Gens,  par  .\l]ilii)jisc  Kivier,  I'aris,  LS96,  2  vols. 


§  3  1  SOVEREIGNTY    AND    INDEPENDENCE.  17 

of  cities,  as  much  territorial  as  imperial,  endowed  with  important 
political  privileges,  but  without  a  proper  (propre)  existence,  and  not 
recognized  as  an  independent  community. 

Sovereigns,  or  the  heads  of  states,  are  sometimes  considered  as  per- 
sons or  subjects  of  the  law  of  nations.  But,  while  sovereigns  are  the 
universal  representatives  of  states,  it  is  only  on  this  ground  that  they 
can  be  considered  as  having,  and  then  only  indirectly,  a  personality 
under  the  law  of  nations.  This  conception,  however,  seems  to  be 
superfluous.  More  erroneous  still  is  the  doctrine  which  sees  in  the 
man  a  subject  of  the  law  of  nations;  the  man  has  international  rights 
only  in  his  character  of  a  subject  or  citizen  of  a  state,  and  through 
the  intermediary  of  that  state. 

The  ethnographic  nationalities,  the  real  or  pretended  races  to  which 
the  inhabitants  of  the  territor}^  belong,  and  the  languages  which  those 
inhabitants  speak  have  no  direct  influence  from  the  point  of  view  of 
the  law  of  nations;  but  the}"  have  a  moral  importance,  political  and 
social,  which  maj'  be  very  considerable. 

Principes  du  Droit  des  Gens,  I.  45-51. 

'•The  native  princes  who  acknowledge  the  imperial  majesty  of  the 

United  Kingdom  have  no  international  existence.  That 
Protected  princes  of  ,.     ....  -        .    j       --i     j.i        i        •    •  i? 

^  ,  their  dominions  are  contrasted  with  the  dominions  of 

India. 

the  Queen,  and  that  their  subjects  are  contrasted  with 
the  subjects  of  the  Queen,  are  niceties  of  speech  handed  down  from 
other  da3's  and  now  devoid  of  international  signiflcance,  though  their 
preservation  may  be  conv^enient  for  purposes  internal  to  the  Empire; 
in  other  words,  for  constitutional  purposes.  So,  too,  the  term  'pro- 
tectorate' as  applied  to  the  Empire  in  its  relation  to  those  princes,  and 
the  description  of  their  subjects,  when  abroad,  as  persons  entitled  to 
British  protection,  are  etymologically  correct;  but  they  do  not  bear  the 
technical  meaning  which  belongs  to  the  protection  of  the  Republic  of 
San  Marino  and  its  citizens  by  the  Kingdom  of  Italy,  or  that  other 
technical  meaning  which  ])elongs  to  a  protectorate  in  Central  Africa. 
The}'  are  etymologically  correct  because  every  state  is  the  protector 
of  its  own  people,  and  the  United  Kingdom  has,  for  international  pur- 
lK)ses,  absorbed  the  Indian  princes  and  their  subjects  into  itself.  And 
the  government  of  India  was  fully  justified  in  the  notification  which 
it  published  in  its  Official  Gazette,  No.  ITOO  E,  21st  August,  1891: 
•  The  principles  of  international  law  have  no  bearing  upon  the  relations 
between  the  government  of  India  as  representing  the  Queen-Empress 
on  the  one  hand  and  the  native  states  under  the  suzerainty  of  Her 
Majesty  on  the  other.  The  paramount  supremacy  of  the  former  pre- 
supposes and  implies  the  subordination  of  the  latter.'" 

Westlake,  International  Law,  215;  citing  Lee- Warner,  The  Protected  Princes 
of  India,  373.     See  also  Tupper,  Our  Indian  Protectorates. 

H.  Doc.  551 2 


18  states:  chakacteristics  and  classification.         [§  ■!• 

'•\Vo  must  undorstand  bv  the  word  "stato'  all  the  possessions  of  a 
nation,  in  whatever  place  they  ma}'  be  situated  and 
0  onia   posses-    ^^.}j.^(^,»yp,.  j,^j^y  j^^,  ^\^^^  distance  that  separates  them, 
sions.  ^     -  _  •  .  .         "^ 

Vattel  has  t'ormulat(Hl  on  this  subject  the  following 

important  rule:  '  Whenever  the  political  laws  and  the  treaties  have  not 
established  distinctions  to  the  contrary,  that  which  we  call  the  terri- 
tor}'  of  a  nation  includes  its  colonies.""' 

Calvo,  Le  Droit  International,  cinquiemo  ed.,  §  40,  p.  170. 

II.     SOVEREIGNTY  AM)  IXDEFEXDEXCE. 
§  4. 

The  words  "sovereignty'"  and  "independence""  are  often  used  by 

writers  on  international  law  as  practically  svnony- 
Ideas  of  sovereignty  ,  ^  .•  ^i  iii'j'i- 

^  .  ,       ^  mous  terms,     bometimes  thev  are   caretullv  distm- 

and  independence.  .   ,      ,  ,.," 

guished.     "Independence,  like  every  negative,  does 

not,"  .says  Westlake,  "admit  of  degrees.  A  group  of  men  depeiident 
in  any  degree  on  another  group  is  not  independent,  but  has  relations 
with  that  other  which  as  between  the  two  are  constitutional  relations. 
Sovereignty  is  partible.  A  group  of  men  is  fully  sovereign  when  it 
has  no  constitutional  relations  making  it  in  any  degree  deixMident  on 
an}'  other  group;  if  it  has  such  relations,  so  much  of  sovereignty  as 
they  leave  it  is  a  kind  or  degree  of  semi-.sovereignty,  though  the  con- 
stitution may  not  call  it  by  that  name.  Thus  the  independence  and  the 
full  sovereignty  of  a  state  are  identical.  l)utit  would  be  an  abuse  of  lan- 
guage to  speak  of  semi-sovereignty  as  partial  independence."  ^'  On  the 
other  hand,  there  are  writers  who  strongly  object  to  the  idea  of  a 
division  of  sovereignty,  since  sovereignty,  according  to  their  concep- 
tion of  it,  is  indivisible  and  has  no  degrees.  These  differences  belong 
rather  to  the  domain  of  political  science  than  to  that  of  international 
law.  As  international  law  deals  with  actual  conditions,  it  recognizes 
the  fact  that  there  are  states  not  in  all  respects  independent  that 
maintain  international  relations,  to  a  greater  or  less  extent,  according 
to  the  degre(»  of  their  dei)endence.  Such  states  are  g(Mierally  called 
semi-.sovereign.  A  state  is  sovereign,  from  the  point  of  view  of  the 
law  of  nations,  when  it  is  independent  of  every  other  state  in  the 
exercise  of  its  international  rights  externally,  and  in  the  manner  in 
which  it  lives  and  governs  itself  internally. 

l^ivirr,  Principcs  dn  Droit  des  Gens.  I.  52. 

"Theoretically  a  politically  organized  community  enters  of  right 
*     *     *     into  the  family  of    nations  and    must   be 

egi       go   80  er    ^j.p.^^p(^|  j^^  accordance  with  law,  so  soon  as  it  is  able 
eign  existence. 

to  show  that  it  possesses  the  marks  of  a  state.     The 

«Int.  Law,  87. 


^  4.]  SOVEREINGTY    AND    INDEPENDENCE.  19 

commencement  of  a  state  dates  nevertheless  from  its  recognition 
by  other  powers;  that  is  to  say,  from  the  time  at  which  they  accredit 
ministers  to  it.  or  conclude  treaties  with  it.  or  in  some  other  way  enter 
into  such  relations  with  it  as  exist  between  states  alone.  For  though 
no  state  has  a  right  to  withhold  recognition  when  it  has  been  earned, 
states  must  be  allowed  to  judge  for  themselves  whether  a  community 
claiming  to  be  recognized  does  reallj^  possess  all  the  necessar}'  marks, 
and  especially  whether  it  is  likely  to  live.  Thus  although  the  right  to 
be  treated  as  a  state  is  independent  of  recognition,  recognition  is  the 
necessarj^  evidence  that  the  right  has  been  acquired." 

Hall,  Int.  Law.  4th  ed.  87.  Hall  maintains  that,  viewed  as  evidence  of  the 
right  to  be  treated  as  independent,  recognition  by  a  parent  state,  thongh 
"more  conclusive  of  independence  than  recognition  by  a  thinl  power,'' 
doe^  not  essentially  differ  from  the  latter  in  legal  effect.  He  admits,  how- 
ever, that  there  is  an  important  practical  difference  in  the  value  of  the 
evidence  in  the  two  cases,  since  the  parent  state,  by  recognizing  its  revolted 
provinces,  precludes  itself  from  treating  subsequent  recognition  by  other 
states  as  premature. 

"  Sovereignty  is  the  supreme  power  b}'  which  an}'  state  is  governed. 

This  supreme  power  mav  be  exercised  either  internallv 
Internal  and  exter-  ,  „  t   j.  "i  •       x      •     xi,    j.      i  •   i     •" 

,  .    ,      or  externallv.     Internal  sovereigntv  is  that  which  is 

nal  sovereignty.  .      ^  .  fe      . 

inherent  in  the  people  in  any  state,  or  vested  in  its 
ruler  by  its  municipal  constitution  or  fundamental  laws.  *  *  *  Ex- 
ternal sovereigntv  consists  in  the  independence  of  one  political  society, 
in  respect  to  all  other  political  societies.  *  *  *  The  internal  sov- 
ereignty of  a  state  does  not,  in  any  degree,  depend  upon  its  recogni- 
tion by  other  states.  *  *  *  Thus  the  internal  sovereignty  of  the 
United  States  of  America  was  complete  from  the  time  they  declared 
themselves  'free,  sovereign,  and  independent  States,'  on  the  4th  of 
July,  177B.  It  was  upon  this  principle  that  the  Supreme  Court  deter- 
mined, in  1808,  that  the  several  States  composing  the  Union,  so  far  as 
regards  their  municipal  regulations,  became  entitled,  from  the  time 
when  they  declared  themselves  independent,  to  all  the  rights  and 
powers  of  .sovereign  states,  and  that  they  did  not  derive  them  from 
concessions  made  by  the  British  King.  The  treaty  of  peace  of  1782 
contained  a  recognition  of  their  independence,  not  a  grant  of  it. 
(Mcllvaine  n  Coxe\s  Les.see,  4  Cranch,  212.)  *  *  *  The  external 
sovereignty  of  any  state,  on  the  other  hand,  ma}'  require  recognition 
by  other  states  in  order  to  render  it  perfect  and  complete.'- 
Wheaton,  Elements,  Chap   ll.  §  20,  21,  Dana's  ed.  31-33. 

The  sovereignty  of  the  state  does  not  preclude  the  assumption  of 

obligations,  by  treaty  or  otherwise,  or  the  existence 

tions  of  a  servitude  upon  the  territory  of  one  state  for  the 

benefit  of  another.     Nor  is  it  incompatible  with  the 


20        states:  characteristics  and  classification.  [§  4. 

paymont  of  trilnito,  where  such  payment  is  made,  as  to  the  Barbary 
powers  prior  to  1830.  not  as  a  sign  of  dependence,  but  as  the  price  of 
an  advantatje  gained  or  peril  avoided. 

Calvo,  Le  Droit  Int.,  cinqnidme  ed.  I.  172,  §  43;  Rivier,  Principes  dii  Droit 
des  (lens,  I.  52;  Halleck,  Int.  Law,  3rd  ed.,  by  Baker,  I.  68,  t-h.  III.  §  7. 
See,  as  to  tributary  States  in  the  P^ast,  Mr.  F.  W.  Seward  to  Mr.  Evarts, 
Dec.  11,  1879,  For.  Rel.  1880,  194;  Moore,  Int.  Arbitrations,  V.  5046. 

Calvo  observes  that  the  transitor}-  obedience  which  a  state  pays  to 

^  ^       ,  .  .  the  directions  of  another  govennuent,  or  the  exterior 

External  influence.  " 

inrtuencc  to  which  it  may  eventually  have  to  submit, 
is  not  incompatible  with  the  sovereignty  of  such  state.  Thus,  for 
example,  the  city  of  Cracow  was  recognized  by  the  congress  of  Vienna 
in  1815  as  a  free  state,  independent  and  neutral,  under  the  protection 
of  Ru.ssia,  Austria,  and  Prussia.  Notwithstanding  the  powerful  influ- 
ence which  those  three  powers  were  thus  called  upon  to  exerci.sc  over 
that  state.  Cracow  did  not  cease  to  be  considered  as  an  independent 
nation  in  its  international  relations  till  1846,  when  it  was  incorporated 
with  the  P^mpire  of  Austria,  the  incorporation  giving  rise  to  a  protest 
on  the  part  of  England,  France,  and  Sweden,  based  upon  the  violation 
of  the  treaties  of  1815. 

Calvo,  Le  Droit  Int.,  5th  ed.  I.  172,  §  42. 

Independence  or  sovereignty  is  sometimes  guaranteed  b}-  one  or  more 

states,  severally  or  jointly.     The  independence  of  Bei- 

,        *      gium  has  been  guaranteed  since  1831,  and  in  virtue  of 
antees.  "  " 

Art.  II.  of  their  treaty  with  the  Netherlands  of  April 
19,  1831),  ))y  the  five  powers;  the  maintenance  of  its  independence,  as 
well  as  of  its  neutrality,  was  the  object  of  new  treaties  concluded  at 
London  August  1>  and  11,  1870,  by  Great  Britain  and  Prussia,  and 
(Jreat  Britain  and  France.  The  independence  of  Luxemburg  was  col- 
h?ctively  guaranteed  by  Austria,  (heat  Britain,  Prussia,  and  Russia, 
in  the  treaty  of  Ijondon  of  May  11,  18(17,  Art.  II.  Greek  independ- 
ence is  guaranteed  by  France,  Great  Britain,  and  Ru.ssia. 

By  Art.  VII.  of  the  treaty  of  Paris  of  1856,  the  contracting  parties 
agreed  each  on  his  own  part  to  respect  the  independence  and  territo- 
rial integrity  of  the  Ottoman  Empire.     This  is  not  a  guarantee. 

The  independence  of  Switzerland  is  not  guaranteed  by  the  treaties 
of  Vienna.     There  was  no  need  of  it,  and  Switzerland  wished  that  the 
matter  should  not  be  brought  into  question.     But  the  integrity  and 
inviolability  of  Swiss  territory  have  been  guaranteed. 
Rivier,  Principe.^  du  Droit  des  Gens,  I.  61-62. 


-1.]  CLASSIFICATION    OF   STATES.  21 


III.     CLASSI-FICATIOX  OF  STATES. 
1.  Simple  States. 

§  5. 

From  the  point  of  view  of  their  external  relations,  states  may  be 
classed  as  either  simple  or  composite.     The  character- 
istic of  the  simple  state  is  that  it  has  one  supreme 
government,  and  exerts  a  single  will,  whether  it  be 
the  individual  will  of  a  sovereign  ruler,  or  the  collective  will  of  a  pop- 
ular body  or  of  a  representative  assembly.     If  this  characteristic  be 
present,  it  matters  not  that  the  state  may  be  divided  for  purposes  of 
administration  into  provinces,  departments,  comnuines,  or  counties, 
or  that  it  ma\'  hold  colonies  or  dependencies,  exercising  to  a  greater 
or  less   extent  powers  of   self-government  in  various   parts  of   the 
world.     In  this  sense  the  United  Kingdom  of  Great  Britain  and  Ire- 
land,  with    its   widespread   possessions,  constitutes   a   simple   state. 
Likewise  Russia,  with  its  extensive  dominions  in  Europe  and  in  Asia. 
France,  Ital}-,  the  Netherlands.  Belgium.  Spain.  Denmark,  Portugal, 
and  Turkey  are  other  examples  of  simple  states.  " 

(1)     SINGLE    STATES. 

§  6. 

The  simple  state  maj'  be  either  single,  i.  e.,  wholly  separate  and 
distinct  from  an}'  other  state,  or  it  may  be  connected  with  another 
state  by  what  is  called  a  personal  union.  The  examples  given  in  the 
preceding  section  of  simple  states  are  also  examples  of  single  states. 

(2)    PERSONAL    I'NION. 
S    T. 

"Personal  union"  is  the  phi*ase  reserved  to  denote  the  condition 
that  exists  where  states.- which  are  wholly  separate  and  distinct,  have 
the  same  ruling  prince.  If,  as  the  result  of  this  identity  of  rulers,  or 
in  connection  with  it.  the  individuality  of  the  states  be  permanentlj' 
merged,  or  held  for  a  time  in  suspense,  the  relation  is  no  longer  prop- 
erly described  as  a  personal  union.  The  example  most  frequently 
given  of  a  personal  union  is  that  of  Great  Britain  and  Hanover  from 
1714  to  1837.  The  two  states,  though  they  employed  'the  same 
agent  for  a  particular  class  of  purjx)ses."  remained  independent,  with 
separate  nationality  and  separate  rights  and  obligations.  Other  ex- 
amples that  have  been  cited  of  a  personal  union  are  those  of  Spain 
and  the  Empire  during  the  reign  of  the  Emperor  Charles  V.,  Saxony 
and  Poland  from  1697  to  1763,  Schleswig-Holstein  and  Denmark  from 

o  Rivier,  Principes  du  Droit  dea  Gens,  I.  77. 


22        .  states:  characteristics  and  classification.         [§  7. 

1778  to  1S«)8.  Priissiu  aiul  th<^  pi-incipality  of  Noufohatel  down  to  1857, 
and  tho  N(»tlu'rlands  and  Lux(Mul)iirg  from  1S15  to  1.S90.  Leopold  II., 
Kiiiir  of  the  Belgians,  in  assuming,  in  1885,  the  post  of  sovereign  of 
the  Independ(Mit  State  of  the  Congo,  declared  that  the  tie  between 
Belgium  and  the  Congo  was  y^urely  personal. 

By  the  tr(»aty  between  Denmark,  France,  Great  Britain,  and  Russia, 
signed  at  London  July  18,  18r)8,  for  the  accession  of  George  l.  to  the 
throne  of  GrcMH-e,  it  is  exi)r«vssly  declared  (Art.  IV.)  that  in  no  case 
shall  the  crowns  of  Greece  and  Denmai'k  be  united  on  the  same  head. 
A  similar  declaration  was  made  in  the  Peace  of  the  Pyrenees,  of 
November  7.  1»»51>.  in  regard  to  the  crowns  of  France  and  Spain. 

See  Rivier,  Principes  du  Droit  (h-^  ( ieii^^,  I.  93-97;  Hall,  Int.  Law,  4th  ed.  25-26; 
Wheaton,  Elements,  Dana's  ed.  (iCMU,  §  40. 

2.  Composite  States. 

^  8. 

A  composite  state  is  one  compo.scd  of  two  or  more  states.  The 
character  of  the  international  person  thus  constituted  depends  upon 
the  nature  of  the  act  l)y  which  the  union  was  created  and  the  extent 
to  which  the  .sovereignty  of  the  component  parts  is  impaired  or  taken 
away. 

For  the  purpo.ses  of  international  law,  composite  states  are  usually 
classed  as  real  unions,  confederacies,  and  federal  unions. 

(1)     KEAL    rXIOX. 

Where  states  are  not  only  ruhni  by  the  same  prince,  but  are  also 
united  for  international  purposes  by  an  express  agreement,  there  is 
.said  to  exist  a  real  union.  Such  a  union  is  su.sceptible  of  great  varia- 
tion, and  its  character  can  be  detei'mined  in  each  individual  ca.se  only 
by  the  particular  terms  of  the  agre(>ment. 

'i'he  examples  most  fre(juently  cited  of  a  real  union  are  Aitstria- 
Hungary  and  Swcnlen  and  Norway.  The  })asis  of  the  i)resent  Austro- 
Ilungarian  union  is  the  agreement  {AiKjsleicJi)  of  1867.  While  the 
two  great  divisions  of  the  monarchy  have  for  many  purpo.ses  separate 
laws  and  separate  administrative  organizations,  they  have  a  single 
minister  for  foi'cign  atl'aii's,  a  single  minister  of  war,  and  a  single 
minister  of  tinance.  In  foreign  atfairs  the  mor.archy  speaks  as  one 
person. 

Th«'  kingdom  of  Sweden  and  Norwa}'  is  sometimes  clas,s(>d  as  a  per- 
sonal union."  Kach  division  has  a  separate  commercial  Hag  and  to 
some  extent  separate  treaties.  The  United  States  has  a  separate  extra- 
dition treaty  with  Sweden  signed  January  14,  1893,  and  one  with  Nor- 


a  Wheaton,  Elements,  Dana's  ed.  61,  §  40. 


§  9.]  CLASSIFICATION    OF    STATES.  23 

way,  signed  June  7, 1893.  In  each  ca.se,  however,  the  treaty  was  made 
by  "The  United  States  of  America"'  and  **His  Majesty  the  King  of 
Sweden  and  Norway;"  and  all  the  other  treaties  between  the  two  par- 
ties, including  the  convention  of  May  26.  1S6*.*,  in  relation  to  nation- 
ality, comprehend  Sweden  and  Norway  as  one  state.  The  union 
between  the  kingdoms  rests  on  the  international  act  of  August  6.  1815, 
by  which  provision  is  made  for  the  election,  in  a  certain  contingency, 
of  one  and  the  same  person  as  successor  to  the  throne. 

Rivier,  Principes  du  Droit  des  Gens,  I.  97-99. 

(2)  CONFEDERATION. 

§  10. 

Where  states  associate  themselves,  in  a  permanent  manner,  for  the 
exercise  in  common  of  their  rights  of  sovereignty  for  the  general 
advantage,  they  constitute  a  confederation.  A  confederation  differs 
from  an  ordinary  alliance  or  league  not  only  in  the  intention  of  perpe- 
tuity, but  also  in  the  possession  of  some  common  organization  by 
means  of  which  the  will  of  the  component  states  is  ascertained  and 
given  effect.  Those  states,  however,  retain  their  int(>rnal  and,  to  a 
greater  or  less  extent,  their  external  sovereignty.  Their  personality 
in  international  law  is  not  destroyed.  The  act  l)v  which  they  are 
bound  together  is  called  a  compact.  The  association  is  a  band  of 
states  {Sfaateithund)^  and  not  a  banded  state  {Banden^taat).  The 
conmion  organization,  or  central  poAver,  represents  the  states,  and  is 
controlled  by  them.  It  operates  upon  the  states,  and  not  directlv 
upon  their  inhabitants.  It  may  be  enlarged  or  restrained  by  the 
states  by  means  of  new  agreements.  The  confederation  itself,  in 
spite  of  the  intention  of  perpetuity,  may  be  denounced  and  dissolved 
by  the  states  that  compose  it. 

Examples  of  confederations  are:  The  Empire,  after  the  Peace  of 
Westphalia  of  1648;  the  (Tcrmanic  Confederation,  from  1815  to  1866; 
the  United  Provinces  of  the  Netherlands,  from  1750  to  1795;  the 
United  States  of  America,  from  1781  to  1789. 

Wheaton,  Element.",  Dana's  ed.  65-77,  §§  44-51;  Rivier,   Princii)es  du  Droit 
des  Gens,  I.  99-10:1 

(3)  FEDERAL    IXIOX. 

^     11. 

Where  states  are  united  under  a  central  government,  which  is 
supreme  within  its  sphere  and  which  posse.sses  and  exerci.ses  in  exter- 
ivcil  affairs  th«^  powers  of  national  sovereignty,  they  Jire  said  to  form  a 
federal  union.  ''The  composite  state,  which  results  from  this  league, 
is  alone  a  sovereign  power.''    The  act  b}-  which  the  union  is  effected 


24  states:  characteristics  and  classification.       [§  11. 

is  called,  not  a  compact,  but  a  constitution.  In  its  external  relations, 
the  federal  union  resembles  a  real  union  rather  than  a  confederation. 
It  diti'ors  from  the  former  in  possessing  still  g'reater  centralized  povv 
ers.  powers  which,  in  their  relation  to  foreign  affairs,  can,  in  the  case 
of  some  federal  states,  scarcely  be  disti  nguished  from  those  of  a  sim- 
ple state.  It  has  the  exclusive  right  to  enter  into  general  treaties  and 
to  make  war  and  conclude  peace,  although,  by  its  constitution,  the 
comixtnent  states  may  exercise  certain  powers  of  foreign  intercourse, 
subject  to  the  control  of  the  central  government.  Its  inhabitants  have 
a  common  citizenship  or  nationality.  If  war  breaks  out  between  the 
component  states  it  is  civil  war,  not  international. 

As  a  type  of  the  federal  union  we  may  take  the  United  States.     By 

the  Constitution  the  Congress  has  power  (Art.  1.,  sec. 
TTnited     States     of  ^,x   ,      ,  j       11      i.  ^  j    j.-        •  i.  j 

.  b)  to  lay  ana  collect  taxes,  duties,  imposts,  and  excises, 

to  pay  the  debts  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States;  to  regulate  commerce  with 
foreign  nations:  to  establish  an  uniform  rule  of  naturalization;  to 
coin  money,  regulate  the  value  thereof,  and  of  foreign  coin;  to  define 
and  punish  piracies  and  felonies  committed  on  the  high  seas  and 
offences  against  the  laws  of  nations;  to  declare  war,  grant  letters  of 
marque  and  reprisal,  and  make  rules  concerning  captures  on  land  and 
water;  to  raise  and  support  armies,  and  to  provide  and  maintain  a 
navy.  On  the  other  hand,  it  is  provided  (Art.  I.,  sec.  10)  that  no  State 
shall  enter  into  any  treaty,  alliance,  or  confederation:  grant  lettei'S  of 
marque  and  reprisal;  coin  money;  or,  without  the  consent  of  Congress, 
keep  troops  or  ships  of  w^ar  in  time  of  peace,  enter  into  an}'  agreement 
or  compact  with  another  state  or  with  a  foreign  power,  or  engage  in 
war,  unless  actually  invaded,  or  in  such  imminent  danger  as  will  not 
admit  of  delav,  The  President  is  invested  with  power  (Art.  11.^,  sec. 
2),  by  and  with  the  advice  and  consent  of  the  Senate,  to  make  trea- 
ties, provided  two-thirds  of  the  Senators  present  concur;  to  nominate 
and,  by  and  with  the  advice  and  consent  of  the  Senate,  appoint  ambas- 
sadors, other  public  ministers  and  consuls,  and  (sec.  3)  to  receive 
ambassadors  and  other  public  ministers.  The  judicial  power  of  the 
United  States  extends  (Art.  III.,  sec.  2)  to  all  cases  arising  under 
treaties;  to  all  cases  affecting  ambassadors,  other  pu])lic  ministers  and 
consuls;  and  to  all  cases  of  admiralty  and  maritime  jurisdiction.  And 
the  Constitution,  the  laws  made  in  pursuance  thereof,  and  all  treaties 
made  under  the  authority  of  the  United  States,  are  (Art.  VI.)  declared 
to  be  the  supreme  law  of  the  land,  and  to  be  binding  on  the  judges 
in  ever}'  State,  anything  in  the  constitution  or  laws  of  any  State  to 
the  contrary  notwithstanding. 

"While  under  our  Constitution  and  form  of  Government  the  mass 
of  local  matters  is  controlled  by  local  authorities,  the  United  States, 


§  11.]  CLASSIFICATION    OF    STATES.  25 

in  their  relation  to  foreign  countries  and  their  subjects  or  citizens  are 
one  nation,  invested  with  powers  which  belong  to  independent  nations, 
the  exercise  of  which  can  be  invoked  for  the  maintenance  of^  its  abso- 
lute independence  and  security  throughout  its  entire  territory.  The 
powers  to  declare  war.  make  treaties,  supress  insurrection,  repel  inv^a- 
sion,  regulate  foreign  commerce,  secure  republican  governments  to  the 
States,  and  admit  subjects  of  other  nations  to  citizenship,  are  all  sover- 
eign powers,  restricted  in  their  exercise  only  by  the  Constitution  itself 
and  considerations  of  public  policy  and  justice  which  control,  more  or 
less,  the  conduct  of  all  civilized  nations." 

The  Chinese  Exclusion  Case,  130  U.  S.  581,  604  (1889),  citing  Cohens  v.  Vir- 
ginia, 6  Wheaton,  264,  413,  and  Knox  *•.  Lee,  12  Wallace,  457,  555. 

In  Europe  there  are  examples  of  federal  union  in  Switzerland  and 

the  German  Empire.    The  latter  is  so  classed  bv  pub- 
German  Empire  and   ,•   .   ,  i       i.i  i    -^  •  i         •        ^        ^    "  j 
„   .,     ,     ,         licists;  and,  althousjh  it  is  complex  in  structure  and 
Switzerland.                                   '                "                         '■ 

presents  numerous  theoretical  difficulties,  it  has  suc- 
ceeded in  practice.  The  relations  of  the  several  States  to  the  Empire 
and  to  each  other  are  not  wholly  regulated  by  the  constitution  of  1871. 
The  .several  States  preserve  the  right  of  legation;  they  grant  exequa- 
turs to  foreign  consuls  within  their  territories,  although  all  German 
consuls  are  .sent  out  by  the  Empire;  they  may  enter  into  conventions 
with  foreign  powers  concerning  matters  not  within  the  competence  of 
the  Empire  or  of  the  Emperor,  and  within  the  limits  fixed  by  the  laws 
of  the  Empire;  and  they  may  conclude  eo/ico/'dafs  with  the  Hol}"^ 
See.  On  the  other  hand,  by  the  constitution  of  1871,  the  laws  of  the 
Empire  are  within  their  proper  sphere  supreme.  There  is  one  citizen- 
ship for  all  Germany,  and  all  Germans  in  foreign  countries  have  equal 
claims  upon  the  protection  of  the  Empire.  The  supervision  of  the 
Empire  and  its  legislature  comprehends,  among  other  things,  the  right 
of  citizenship;  the  issuingandexamination  of  passports;  the  surveillance 
of  aliens;  colonization  and  emigration;  customs  duties  and  commerce; 
coinage,  and  the  emission  of  paper  money;  foreign  trade  and  naviga- 
tion, and  consular  representation  abroad;  and  the  imperial  army  and 
navy.  The  Emperor  represents  the  Empire  among  nations;  enters 
into  alliances  and  other  conventions  with  foreign  countries;  sends  and 
receives  ambassadors;  and  declares  war  and  concludes  peace  in  the 
name  of  the  Empire,  with  the  proviso,  however,  that,  for  a  declara- 
tion of  war.  the  consent  of  the  federal  council  is  required,  except  in 
case  of  ''an  attack  upon  the  territory  of  the  confederation  or  its  coasts..'' 

For  the  German  constitution  of  1871,  see  For.  Rel.  1871,  pp.  383-393.  See 
for  c(jinmentary,  Rivier,  Principles  du  Droit  des  Gens,  I.  104-108;  Calvo, 
Le  Droit  Int.,  cinq.  ed.  I.  184-187,  187-193,  §§55,  56-57. 


26  states:  characteristics  and  classification.       [§  12. 

3.  Neitralizei)  States. 
S12. 

"A  state  is  neutral  which  chooses  to  take  no  part  in  a  war,  and 
persons  and  property  are  called  neutral  which  belong  to  a  state 
occupying  this  position.  The  term  has  in  recent  times  received  a 
larger  application.  A  condition  of  neutrality,  or  one  resembling  it, 
has  been  created,  as  it  were,  artiliciall}'.  and  the  process  has  been 
called  'neutralization.'  States  have  been  permanently  neutralized  by 
convention.  Not  only  is  it  preordained  that  such  states  are  to  abstain 
from  taking  part  in  a  war  into  which  their  neighbors  may  enter,  but 
it  is  also  prearranged  that  such  states  are  not  to  become  principals  in 
a  war.  By  way  of  compensation  for  this  restriction  on  their  freedom 
of  action,  their  immunity  from  attack  is  guaranteed  by  their  neighbors, 
for  whose  collective  interests  such  an  arrangement  is  perceived  to  be 
on  the  whole  expedient. 

"As  early  as  lso3  France  promised  constantly  to  emploj'  her  good 

offices    to    procure    the    neutrality    of    Switzerland 

Belgium.    Ionian  *     *     *     .    .^,^^|   |j^.   ^   declai'ation   confirmed    by  the 

s  es.      ^^"y-  'X'i-^>jitv  of   Vienna,   art.   !S4.   it   was   recited  that  the 

Switzerland.  •  ,  ,    ,  i  i  ,  • 

huropean  powers  acknowledge  "that  the  general  inter- 
est demands  that  the  Helvetic  State  should  enjoy  the  advantage  of  a 
perpetual  neutrality:"  and  such  a  neutrality  was  guaranteed  to  it 
accordingly.  The  ninety-second  article,  confirmed  by  the  Treat}'  of 
Paris,  1815,  art.  3,  and  the  Treaty  of  Turin,  1S6(J.  art.  2,  extended  the 
neutrality  of  Switzerland  to  portions  of  Savoy. 

"By  the  treaties  of  1831  and  1839  Belgium  was  recognized  as  *an 
ind<'pendent  and  perpetuiilly  ncHitral  state,  bound  to  observe  the  same 
neutrality  with  referiMice  to  other  states.'  *  *  *  At  the  outbreak 
of  the  war  of  1870,  England  made  treaties  with  France  and  Pru.ssia, 
respectively,  wit-li  a  view  to  further  securing  th(>  neutrality  of  Belgium. 

••  By  the  treaty  of  March  21»,  1S(U,  art.  2,  •  the  courts  of  Great  Britain, 
France,  and  Russia,  in  their  character  of  guaranteeing  powers  of 
Greece,  d<H'lare,  with  the  assent  of  the  courts  of  Austi'ia  and  Prussia, 
that  the  islands  of  Corfu  and  Paxo,  as  well  as  their  dependencies,  shall 
after  their  union  to  the  Hellenic  Kingdom  enjoy  the  advantages  of 
perpetual  ncutndity,  ,  His  Majesty  the  King  of  the  Hellenes  engages 
on  his  part  to  maintain  such  neutrality.'" 

Holland,  Stiidit'-  in  Int.  Law,  271-272;  Kivier,  Principes  <lu  Droit  des  Gens, 
I.  Ill  (SwitziTlan.l),  116  (Belgium). 

By  the  treaty  of  London  of  May   11,  1867,  Art.  I,  Luxemburg  is 
declared  to  be  a  perpetually  neutral  state  under  the 
uxem  urg.       truurantee  of  the  courts  of  Austria,   Great   Britain, 
Prussia,  and  Russia. 


§  13.]  CLASSIFICATION    OF    STATES.  27 

By  Art.  X.  of  the  general  act  of  Berlin,  of  February  26,  1885,  the 
contracting  parties   hound  themselves  to   respect  the 
°°^°'  neutrality    of  the  territories   of  the   Congo,  includ- 

ing the  territorial  waters,  ''so  long  as  the  Powers  which  exercise  or 
shall  exercise  the  rights  of  sovereignty  or  protectorate  over  those 
territories,  using  their  option  of  proclaiming  themselves  neutral, 
shall  fultill  the  duties  which  neutrality  requires."  August  1,  1885, 
Leopold  II.  of  Belgium  having  l)ecome  the  head  of  the  Independent 
State  of  the  Congo,  M.  von  Estvelde.  administrator-general  of  the 
department  of  foreign  affairs,  informed  the  United  States  that  the 
King,  the  head  of  that  State,  had  charged  him  to  say.  ''that  in  con- 
formity with  article  10  of  the  general  act  of  the  conference  of  Berlin, 
the  Independent  State  of  the  Congo  hereby  declares  itself  perpetually 
neutral,  and  claims  the  advantages  guaranteed  ))v  chapter  8  of  the 
same  act,  at  the  same  time  that  it  assumes  the  duties  which  neutrality 
imposes." 

Correi^pondence  in  relation  to  the  affairs  of  the  Independent  State  of  the  Congo, 
S.  Ex.  Doc.  196,  49  Cong.  1  sess.  300,  327. 

By  the  general  act  of  Berlin,  of  June  14,  1889.  between  the  United 
States,  Germany,  and  Great  Britain,  the  Samoan 
Islands  were  declared  (Art.  I.)  to  be  "  neutral  territory 
in  which  the  citizens  and  subjects  of  the  Three  Signatory  Powers  have 
e({ual  rights  of  residence,  trade,  and  personal  protection."  By  the  con- 
vention between  the  same  powers,  signed  at  Washington,  December 
2,  1899,  the  general  act  of  June  14,  1889,  "and  all  previous  treaties, 
conventions,  and  agreements  relating  to  Samoa,  are  annulled.'' 

4.    SKMI-SoVEKEKiX  StATES,    AND  PrOTE(TORATE.S. 
(1)   SEMI-SOVEKEIGX  STATES. 

§  13. 

A  state  which  is  not  a  member  of  a  composite  state,  but  which,  while 

it  retains  a  certain  personality  in  international  law,  is 

subject  to  the  authoritv  of  another  state  in  its  foreign 
ject.  •*  .  .  •  .  .  " 

relations,  is  commonlv  called  a  semi-sovereign  state. 
The  paramount  state  is  called  the  sHsermn^  and  its  relation  to  the  sub- 
ject state  is  desoril)ed  as  xiizt-riitnty.  The  extent  of  the  authority  or  sub- 
ordination comprehended  l)y  this  term  is  not  determined  by  general 
rules,  })ut  l)v  the  facts  of  the  particular  case.  The  foreign  relations  of 
a  su})ject  state  may  be;  wholly  and  directly  conducted  through  the  min- 
istry of  foreign  affairs  of  the  suzerain.  It  may.  on  the  other  hand, 
maintain  diplomatic  relations,  and.  subject  to  the  veto  of  the  suzerain, 
conclude  treaties  of  all  kinds;  but,  more  frequently,  its  right  of  initia- 
tive, if  it  possesses  any,  is  contined  to  a  limited  sphere;  and  a  consul- 


28  states:  characteristics  and  classification.       [§  14 

general  accredited  to  it,  though  he  may  also  bear  the  title  of  agent  oi 

even  of  diplomatic  agent,  exercises  only  consular  powers. 

A  common  example  of  a  semi-sovereign  state  is  Egypt,  a  tributary 

and  vassal  state,  under  the  suzerainty  of  the  Ottoman 

gyp  ,      u  garia,  p^^^.j^^      j^  ^.^^^  j^  hereditary  ruler,  called  the  Khedive, 

Transvaal,   and  •  '.  ,       ^ 

other  examples.     ^^'^^  receives  investiture  from  the  Sultan  of  Turkey. 
In  fact  the  country  is  occupied  and  its  affairs  are  prac- 
ticalh'  administered  by  Great  Britain. 

By  the  treaty  of  Berlin  of  July  13,  1878,  Art.  1.,  Bulgaria  was  "con- 
stituted an  autonomous  and  tributary  principality,  under  the  suzerainty 
of  His  Imperial  Majesty  the  Sultan,''  with  "a  Christian  government 
and  a  national  militia.'" 

By  Art.  IV.  of  the  convention  signed  at  London,  Feb.  27,  1884, 
l>etween  (xreat  Britain  and  the  Transvaal,  it  was  agreed  that  the  South 
African  Republic  would  "" conclude  no  treaty  or  engagement  with  any 
other  state  or  nation  other  than  the  Orange  Free  State,  nor  with  any 
native  tribe  to  the  eastward  or  westward  of  the  Republic  until  the 
same  has  been  approved  bj"  Her  Majesty  the  Queen,"  and  that  "such 
approval  shall  be  considered  to  have  been  granted  if  Her  Majesty's 
Govenuiient  shall  not,  within  six  months  after  receiving  a  cop3'  of  such 
treaty  (which  shall  be  delivered  to  them  immediatel}'  upon  its  comple- 
tion),  have  notified  that  the  conclusion  of  such  treaty  is  in  conflict  with 
the  interests  of  Great  Britain  or  any  of  Her  Majesty's  possessions  in 
South  Africa."'  Art.  HI.  of  the  same  convention  provided:  "If  a 
Briti.sh  officer  is  appointed  to  reside  at  Pretoria,  or  elsewhere  withii? 
the  South  African  Republic,  to  discharge  functions  analogous  to  tho.se 
of  a  consular  officer,  he  will  receive  the  protection  and  a.ssistance  of 
the  Republic."'  The  South  African  Republic  has,  however,  now  ceased 
to  exist. 

As  to  Egypt,  the  Khanates  of  Khiva  and  Bokhara,  French  Indo-China,  Tunis, 

and  Madagascar,  see  Rivier,  Principes  du  Droit  des  Gens,  I.  86. 
Treaty  of  Berlin,  For.  Rel.  1878,  895,  896. 
I^Midon  Convention  of  1884,  Br.  <k  For.  State  Papei-s,  LXXV.  5,  10. 

(2)     PKOTECTEO    HTATKS    AND    PKOTEtTOKATES. 

There  have  l)een  and  there  now  exist  various  states  which  are  .spe 
cifically  designated  as  protected  states.  In  a  sen.se,  it  is  true,  every 
semi-sovereign  state  may  be  regarded  as  a  protected  state;  and  pro- 
tected .states  are  regularly  clas.sed  as  semi -.sovereign;  but  it  is  only  in 
certain  ca.ses  that  the  nature  or  origin  of  the  particular  relation  has 
caused  the  suzerain  to  be  generally  described  as  a  protector  and  his 
office  as  a  protectorate.  Nevertheless,  the  protectorate  is  capable  of 
every  variation,  both  in  sub.stance  and  in  form,  of  which  the  suzerain 
relation,  as  described  iu  the  preceding  section,  is  susceptible;  and  so 


§  14.]  CLASSIFICATION    OF    STATES.  29 

convenient  and  accommodating  has  it  proved  to  be  in  practice,  that  its 
name  has  been  applied  to  cases  that  really  do  not  lie  within  the  domain 
of  semi-sovereignty.  The  French  protectorates  in  Indo-China  and 
elsewhere  are  placed  under  the  colonial  minister,  and  are  properly 
classed  as  colonies,  and  we  have  examples  in  Africa  of  protectorates 
where  there  was  no  recognized  state  to  be  protected. 

Rivier,  Principes  du  Droit  des  (iens,  I.  79-93.  Protectorate.*,  Colonies,  and 
Non-sovereign  States  (Protected  ^lalay  States,  British  India,  British  East 
Africa,  Uganda,  Zanzibar,  Egypt,  Tonking,  Bulgaria,  Dutch  East  Indies), 
S.  Doc.  62,  55  Con.  .3  Sess.,  Part  2,  p.  627  et  seq. 

Colonial  Sy.stemsof  the  World:  The  Colonies,  Protectorates,  Dependencies,  and 
Spheres  of  Influence  of  all  Nations  exercising  Authority  outsi<le  their 
immediate  Territory;  showing  Form  of  Government,  Area,  Population, 
Revenue,  etc. ;  from  Summary  of  Commerce  and  Finance  fop  December, 
1898,  Bureau  of  Stati.stit\«,  Treasury  Department. 

"The  most  important  modern  instance  of  a  protected  state  is  afforded 
by  the  United  Republic  of  the  Ionian  Islands,  estab- 
lonian  Islands,  An-  jj^j^^^  j^  ^g-^-  under  the  protectorate  of  Great  Britain." 
dorra.    San    Ma-  ,       ,  .  i      i        i     c    i  •         i 

rino  Monaco  *    '"^  ^'^''^  ^^  head  or  the  government  was  appointed 

by  England,  the  whole  of  the  executive  authority  was 
practically  in  the  hands  of  the  protecting  power,  and  the  state  was 
represented  by  it  in  its  external  relations.  In  making  treaties,  how- 
ever. Great  Britain  did  not  affect  the  Ionian  Islands,  unless  it  expressl}' 
stipulated  in  its  capacity  of  protecting  power;  the  vessels  of  the 
republic  carried  a  separate  trading  flag;  the  state  received  consuls, 
though  it  could  not  accredit  them;  and  during  the  Crimean  war  it 
maintained  a  neutrality  the  validity  of  which  was  acknowledged  in  the 
English  courts.  The  only  protected  states  now  existing  in  Europe 
are  the  republics  of  Andorra  and  San  Marino,  and  possibly  the  prin- 
cipality of  Monaco."" 

Hall,  Int.  Law,  4th  ed.  .30. 

By  a  treaty  between  Austria,   France,  (Jreat    Britain,  Prussia,  and    Russia, 

signed  at  London  Nov.  14,  1863,  the  Ionian  Islands  were  united  to  Greece 

and  were  neutralized. 

"The  commonest  cjise  by  far  is  now  that  of  a  protectorate  exercised 
Countries  not  pos-  '>.v  a  state  of  European  civilization  over  one  of  other 
sessing European  civilization,  as  that  which  France  exercises  over  Tunis 
civilization.  j^,^(j  ^j^^^  which  England  exercises  over  Zanzibar. 

*■•  Where  there  is  no  state,  that  is  to  say.  in  an  uncivilized  region, 
there  can  be  no  protected  state,  and  therefore  no  such  protectorate  as 
has  been  described  in  the  last  paragraph.  But  in  recent  times  a  prac- 
tice has  ari.sen  })y  which  in  such  regions  civilized  powers  assume  and 
exercise  certain  rights  in  more  or  less  well-detined  districts,  to  which 
rights  and  districts,  for  the  term  is  used  to  express  both  the  one  and 
the  other,  the  name  of  a  protectorate  is  given  b}'  analogy.     The  dis- 


30  states:  characteristics  and  classification.     [§  15. 

tiiK'tivo  c'liaractor.s  of  those  rights  are,  first,  that  they  are  contrasted 
with  territorial  sovereignty,  for.  as  far  as  such  sovereignty  extends, 
there  is  the  state  itself  which  has  acciiiired  it  and  not  a  protectorate 
exercised  hy  that  state;  secondly,  that  the  protectorate  first  established 
excludes  all  other  sbites  from  exercising  any  authority  within  the  dis- 
trict, either  })v  way  of  territorial  sovereignty  or  of  a  protectorate — 
that  is  to  say.  while  it  lasts,  for  the  ([uestion  remains  whether  a  pro- 
tectorate, like  an  inchoate  title  to  territorial  sovereigntv,  is  not  sub- 
ject to  conditions  and  liable  to  forfeiture  on  their  non-fulfillment; 
thirdly,  that  the  state  enjoying  the  protectorate  represents  and  pro- 
tects the  district  and  its  population,  native  and  civilized,  in  everything 
which  relates  to  other  powers.  The  analogy  to  the  protectorate  exer- 
cised over  states  is  plainly  seen  in  the  last  two  characters,  exclusive- 
ness  and  representation  with  protection.  It  is  less  visible  in  the  first 
character,  for,  where  there  is  a  protected  state,  the  territorial  sover- 
eignty is  divided  Ijetween  it  and  the  protecting  state,  according  to  the 
arrangements  existing  in  the  particular  case,  while  in  an  uncivilized 
protectorate  it  is  in  suspense.'' 

Westlake,  Int.  Law,  178.  See  Hall,  Foreifrii  Pdwern  and  Jurisdiction  of  the 
British  Crown,  214. 

By  Art.  84  of  the  (Jeneral  Act  of  Ik'rlin  of  Feb.  2t),  1885,  it  wa.s  agreed  that 
any  of  the  contractin<r  i>arties  that  might  thereafter  take  possession  of  any 
territory  or  a.«sunie  a  protectorate  on  the  continent  of  Africa  should  notify 
the  other  parties;  and  l)y  Art.  .35  the  signatory  ])owers  "recognize  the 
obligation  to  insure  the  establishment  of  authority  in  the  regions  occupied 
by  them  on  the  coa.sts  of  the  African  continent  sufficient  to  protect  exist- 
ing rights,  and,  the  ca.«e  arising,  freedom  of  trade  and  of  transit  on  the 
conditions  that  may  have  been  agreed  u])on."  "I  am  at  one  with  Mr. 
Hall  in  the  opinion  .  .  .  that  a  jirotectorate  on  the  coast  of  Africa 
carries  an  oljligation  of  establishing  authority  etjual  to  that  laid  down  in 
.\rt.  85,  although  that  opinion  for  me  is  not  l)a.sed  on  the  article  but  on 
the  nature  of  the  case.  And  while  he  considers  that  the  obligation  which 
lie  finds  to  be  stipulated  forHie  cf)ast  imj)lies  even  for  an  inland  i)rotec- 
torate  a  consent  to  civil  and  criminal  juris<liction  over  foreigners,  a.«  being 
necessary  for  the  establishment  of  the  authority,  it  seems  to  me  that  that 
<(»nsent  also  is  carried  by  a  protectorate  over  any  uncivilized  region,  and 
again  from  the  nature  of  the  case."      (Westlake,  Int.  Law,  181.) 

5.   Amkkican  Indians. 

(1)   their  dki'kndent  hklation. 

^  IT). 

•"The  condition  of  the  Indians  in  relati<jn  to  the  United  States  is  per- 
haps unlike  that  of  anv  other  two  peoples  in  existence. 
Domestic    dependent   r     .,  i         -•       *       -         •  ii      • 

.  In  the  iToncral,  nations  not  owinjjf  a  conmionallegfiance 

nations.  '^  .  '^  *^      . 

arc  foreign  to  each  other.     *     *     *     But  the  relation 

of  the  Indians  to  the  United  States  is  marked  by  peculiar  and  cardinal 
distinctions  which  exist  nowhere  else.  The  Indian  Territory  is  admitted 
to  compos(!  a  part  of  the  United  States.     *     *     *     Though  the  Indians 


5  15.]  AMERICAN    INDIANS.  31 


are  acknowledged  to  have  an  unquestionable,  and  heretofore  unques- 
tioned right  to  the  lands  they  occupy  until  that  right  shall  be  extin- 
guished by  a  voluntary  cession  to  our  Government,  yet  it  may  well  be 
doubted  whether  those  tribes  which  reside  within  the  acknowledged 
boundaries  of  the  United  States  can,  with  strict  accuracy,  be  denomi- 
nated foreign  nations.  They  may,  more  correctly,  perhaps,  be 
denominated  domestic  dependent  nations.  They  occupy  a  territory  to 
which  we  assert  a  title  independent  of  their  will,  which  must  take 
etlect  in  point  of  possession  w^hen  their  right  of  possession  ceases. 
Meanwhile  they  are  in  a  state  of  pupilage.  *  *  *  They  and  their 
country  are  considered  by  foreign  nations,  as  well  as  by  ourselves,  as 
being  so  completely  under  the  sovereigntv  and  dominion  of  the 
United  States  that  any  attempt  to  accpiire  their  lands  or  to  form  a 
political  connection  with  them  would  be  considered  by  all  as  an  inva- 
sion of  our  territory  and  an  act  of  hostility." 

Mari?hall,  C.  J.,  Cherokee  Nation  r.  Georgia  (1821),  5  Pet.  1;  holding  "that  an 
Indian  tribe  or  nation  within  tlie  Tnited  States  is  not  a  foreign  State" 
in  the  sense  of  the  Constitution,  Art.  Ill,  Sec.  2,  which  provides  that  the 
judicial  power  of  the  I'nited  States  shall  extend  to  all  cases  "between  a 
State    .     .     .     and  foreign  States,  citizens  or  subjects." 

See,  also,  Holden  r.  .loy,  17  Wall.  211;  Jones  r.  Meehan  (1899),  165  U.  S.  1, 10. 

The  Cherokee  Nation  being  '"  a  distinct  communit3%  occupying  its 
own  territory,  with  boundaries  accurately  described,"  and  the  ''whole 
intercourse  between  the  United  States  and  this  nation''  being,  by  "  the 
Constitution  and  laws,  vested  in  the  Government  of  the  United  States." 
the  law.s  of  the  State  of  Georgia  can  have  no  force  within  such  terri- 
tory. 

Worcester  r.  State  of  (ieorgia  (1832),  (J  Pet.  515,  561. 

"When  the  existing  system  [of  agencies]  was  adopted  the  Indian 
race  was  outside  of  the  limits  of  organized  States  and  Territories,  and 
l)eyond  the  immediate  reach  and  operation  of  civilization;  and  all 
eti'orts  were  mainly  directed  to  the  maintenance  of  friendly  relations 
and  the  preservation  of  peace  and  quiet  on  the  frontier.  All  this 
is  now  changed.  There  is  no  such  thing  as  the  Indian  frontier.  *  *  * 
None  of  the  tri])es  are  outside  of  the  bounds  of  organized  goveriunent 
and  society,  except  that  the  Territorial  system  has  not  been  extended 
over  that  portion  of  the  country  known  as  the  Indian  Territory.  As 
a  race  the  Indians  are  no  longer  hostile  but  may  be  considered  as  sub- 
missive to  the  control  of  the  Government;  few  of  them  only  are 
troublesome.  Except  the  fragments  of  several  bands  all  are  now 
gathered  upon  reservations.  *  *  *  They  are  a  portion  of  our 
people,  are  under  the  authority  of  our  Government,  and  have  a  pecu- 
liar claim  upon  and  are  entitled  to  the  fostering  care  and  protection 
of  the  nation." 

President  Cleveland,  Annual  Message,  Dec.  6,  1886. 


32  states:  characteristics  and  classification.       [§  15. 

Congress  ni.\v  provide  for  the  punishment  of  crimes  committed  on 
an  Indian  reservation  not  within  the  limits  of  one  of  the  States, 
whether  the  offender  be  a  white  man  or  an  Indian. 

United  States  r.  Rogers  (1846),  4  How.  567. 

It  has  been  held  by  the  Attornev's-General  of  the  United  States 
that  while  the  general  laws  of  the  United  States  do  not  apply  to  the 
Indians/' the  sovereignty  of  the  United  States  over  the  territory  ceded 
or  granted  to  them  is  only  partly  relinquished;*  that  the  Cherokee 
Nation  had  no  power  to  impose  taxes  on  persons  trading  among  them 
under  the  authority  of  the  United  States/  and  that  a  white  man  who 
had  by  intermarriage  and  the  exercise  of  tribal  rights  become  a  Chica- 
saw  or  Choctaw  by  adoption,  although  he  did  not  become  subject  to 
the  criminal  jurisdiction  of  the  courts  of  the  nation,  yet  became  sub- 
ject to  their  civil  jurisdiction  in  respect  of  propert}' which  represented 
the  proceeds  of  a  grant  made  to  him  as  a  member  of  the  tribe.''  The 
Choctaws  had  no  power  to  pronounce  and  execute  sentence  of  death 
on  the  slave  of  a  white  man  residing  among  them,  their  treaties  with 
the  United  States  limiting  their  jurisdiction  in  such  cases  to  the 
Choctaw  Nation  of  red  men  and  their  descendants. "^ 

An  Indian  country  may  be  considered  a  Territor}'  of  the  United 
States  within  the  act  of  Congress  empowering  an\^  person  to  whom 
letters  testamentary  or  of  administration  have  been  granted  in  any  State 
or  Territory  of  the  United  States  to  sue  in  the  District  of  Columbia. 

Mackey  >:  Coxc  (1855),  18  How.  104. 

By  the  act  of  March  3.  188,5,  sec.  9, 2.S  Stat.  385,  Congress  provided 
that  ■'  all  Indians  committing  against  the  person  or  prjoperty  of  another 
Indian  or  other  person"  any  of  certain  crimes,  among  which  was  mur- 
der, should,  if  the  crime  was  committed  in  a  Territory  of  the  United 
States,  whether  "  within  or  without  the  Indian  reservation,"  be  subject 
to  punishment  under  the  laws  of  such  Territory,  precisely  as  other 
persons,  but  should,  if  the  crime  was  conimitted  in  a  State  and  within 
the  limits  of  an  Indian  reservation,  be  subject  to  trial  and  punishment 
under  the  laws  and  in  the  courts  of  the  United  States,  //t/^/,  that  this 
act  was  valid,  and  conse(iuently  that  the  United  States  circuit  court 
for  the  District  of  California  had  jurisdiction  of  a  murder  committed 
by  two  Indians  upon  another  Indian  on  a  reservation  in  that  State. 

United  States  r.  Kagania  (1886) ,  118  U.  S.  875.     See  Ex  parte  Mayfield  (1890), 
141  U.  S.  107;  case  of  Crow  Dog,  109  U.  S.  556. 


« 12  Op.  208,  Stanbery,  1867. 
ft  2  Op.  ()98,  Butler.  1834. 
n  Op.  645,  Wirt,  1824. 
'il  Op.  174,  dishing,  1855. 
«  2  Op.  693,  Butler,  1834. 


§  15.]  AMERICAN    INDIANS.  33 

The  lands  in  an  Indian  territoiy,  though  owned  by  the  tribe  in  fee 

„   .        ^       .      under  patents  from  the  United  States,  are  held,  like 
Eminent  domain.  i         /.         •  •  i  •        i 

the   lands  of   private  owners  everywhere  within  the 

geographical  limits  of  the  United  States,  subject  to  the  exercise  b}'^ 
the  General  Government  of  the  right  of  eminent  domain,  just  compen- 
sation being  made  in  conformity  with  the  provisions  of  the  Constitu- 
tion. Congress  therefore  has  the  power  to  authorize  a  corporation  to 
construct  a  railway  through  such  territory,  and  for  that  purpose  to 
condemn  lands,  provision  being  made  for  compensation. 

Cherokee  Nation  v.  Southern  Kansas  Railway  Co.  (1890),  135  U.  8.  641. 

Members  of  an  Indian  tribe  born  within  the  United  States,  though 

they  afterwards  voluntaril}^  separate  themselves  from 

omes  ic  su  jec  s,  ^j^.^  tribe  and  take  up  their  residence  among  white 

not  CltllZ6IlS 

citizens,  are  not  within  the  purview  of  the  declaration 
of  the  fourteenth  amendment  that  ''all  persons  born  *  *  *  j^ 
the  United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States  and  of  the  States  wherein  they  reside.''^'  The}'^ 
are  not  citizens  of  the  United  States,  but  are  domestic  subjects.* 
Though  capable  of  naturalization  by  law  or  by  treaty,  they  are  not 
within  the  general  statutes  relating  to  naturalization.'" 

Congress,  by  an  act  of  May  2,  1890,  2fi  Stat.  81,  provided  (sec.  30) 

that  "the  judicial  tribunals  of  the  Indian  nations  shall 

Local  self-govern-        ,    .  ,       .         ••!•-•  •         n      •    -i         j       •      •      ^ 

7  retain  exclusive  lurisdiction  in  all  civil  and  criminal 

ment.  ...  .  ,  .    , 

cases  arising  in  the  country  in  which  memliers  of  the 

nation  b}-  nativity  or  by  adoption  shall  be  the  only  parties.''  The  act 
also  provided  (sec.  81)  that  the  Constitution  and  all  general  laws  of  the 
United  States  '"'which  prohibit  crimes  and  misdemeanors  in  an}^  place 
within  the  sole  and  exclusive  jurisdiction  of  the  United  States,  except 
in  the  District  of  Columbia,  and  all  laws  relating  to  national  ])anking 
associations,  shall  have  the  same  force  in  the  Indian  Territory  as  else- 
where in  the  United  States;  but  nothing  in  this  act  shall  be  so  con- 
strued as  to  deprive  any  of  the  courts  of  the  civilized  nations  of 
exclusive  jurisdiction  over  all  cases  arising  wherein  members  of  said 
nations,  whether  by  treaty,  blood,  or  adoption,  are  the  sole  parties, 
nor  so  as  to  interfere  with  the  rights  and  powers  of  said  civilized 
nations  to  punish  said  members  for  violation  of  the  statutes  and  laws 
enacted  by  their  national  councils  where  such  laws  are  not  contrary  to 
the  treaties  and  laws  of  the  Unitcnl  States."" 

/L7d  that  while  the  rights  of  local  self-government  possessed  by  the 


"Elk  r.  Wilkins  (1884),  112  V.  8.  94. 

''  7  Op.  74(),  Cashing,  1855. 

'■p:ik  V.  Wilkins  (1884),  112  U.  8.  94,  approving  McKay  v.  Campbell,  2  Sawyer,  118, 
and  United  States  v.  Osborne,  6  Sawyer,  406.  See,  also,  Wharton,  Confl.  of  Laws, 
§§  9,  252;  Am.  Law  Review,  XV.  21;  XX.  183. 

H.  Doc.  551 3 


34  states:  characteristics  and  classification.      [§  15. 

Indian  tribes  were  subject  to  the  .supreme  legislative  authority  of  the 
United  States,  yet  under  the  legislation  just  quoted  the  crime  of 
murder  conuiiitted  })y  one  Cherokee  Indian  upon  another  within  the 
jurisdiction  of  the  Cherokee  Nation  was  not  an  offence  against  the 
laws  of  the  United  States,  but  an  offence  against  the  local  laws  of  the 
Cherokee  Nation;  that  the  statutes  of  the  United  States  with  refer- 
ence to  proceedings  by  grand  jury  in  the  courts  of  the  United  States 
necessarily  had  no  application;  that  the  fifth  amendment  to  the  Con- 
stitution, which  requires  indictment  by  a  grand  jury  in  certain  cases, 
being  a  limitiition  only  upon  the  powers  of  the  General  Government, 
also  had  no  application,  since  the  local  powers  of  the  Cherokee  Nation 
existed  prior  to  the  Constitution  and  were  not  Federal  powers  created 
by  and  springing  from  it;  and  that  the  question  whether  a  statute  of 
the  Cherokee  Nation  which  was  not  repugnant  to  the  Constitution  of 
the  United  States  or  in  conflict  with  any  treaty  or  law  of  the  United 
States  had  been  repealed  by  another  statute  of  that  nation,  and  the 
determination  of  what  was  the  existing  law  of  the  Cherokee  Nation 
as  to  the  constitution  of  the  grand  jur}-,  were  matters  solely  within 
the  jurisdiction  of  the  courts  of  that  nation  and  the  decision  of  which 
did  not  in  itself  involve  an  infraction  of  the  Constitution. 

Talton  r.  Mayes  (1896),  163  U.S.  376. 

In  Lucas  r.  United  States  (1896),  163  V.  S.  612.,  which  related  to  the  validity 
of  the  trial  by  a  United  States  court  of  a  Choctaw  Indian  for  the  murder 
of  a  negro  in  the  Choctaw  Nation,  in  the  Indian  Territory,  it  was  held 
that  the  victim's  nonmembership  of  the  tribe  was  a  jurisdictional  fact  the 
burden  of  proving  which  rested  upon  the  Government,  and  that  the  court 
]>elow  erred  in  holding  that  a  finding  of  the  fact  that  he  wa.«  a  negro  created 
a  presumption,  although  he  wa.s  found  within  the  Indian  Territory,  that 
he  was  not  a  member  of  the  tribe. 

See  acts  of  Jmie  7,  1897,  30  Stat.  62,  83,  and  June  28,  1898,  30  Stat.  495  et  seq., 
as  to  jurisdiction  in  the  Indian  Territory. 

The  relation  of  the  Indian  tribes  to  the  United  States  has  been  com- 
pared with  that  of  the  native  States  of  India  to  Great 
Comparison     with  j^i-itjy,,.     There  are  points  of  strong  resemblance  and 

native   States   of     ,  •    i.        £    txs  t<i  •  j  Oi   i.         j! 

also  points  or  dinerence.      Ine  princes  and  States  of 

India,  like  the  Indian  tribes  in  the  United  States,  have 

no  relations  with  foreign  powers;  nor  do  they  hold  any  intercourse  one 

with  another. 

Westlake,  Int.  I^w,  "The  Empire  of  India  in  Relation  to  International  Law," 
211,  and  "The  Empire  of  India  in  relation  to  Constitutional  Law,"  219; 
Lawrence's  Wheaton  (1863),  70,  71. 

At  an  early  day  Mr.  »]ohn  Quinc}'  Adams  maintained  that  "the  right 

of  the  citizens  of  the  United  States  to  hold  commerce 

.  .    ,  ,  .,  with  the  aboriginal  natives  of  the  northwest  coast  of 

nginal  tribes.  .  ,      " 

America  without  the  territorial  jurisdiction  of  other 
nations,  even  in  arm.-?  and  ammunitions  of  war.  is  as  clear  and  indis- 


§  16.]  AMERICAN    INDIANS.  35 

putable  as  that  of  navigating  the  seas."  But,  at  a  late  period,  when 
no  territory  in  America  was  recognized  as  not  wholly  within  the  juris- 
diction of  civilized  jwwers,  Mr.  Marcy  declared  that  ''the  United 
States  may  as  well  undertake  to  maintain  and  hold  political  relations 
with  the  county  of  Galway,  in  Ireland,  or  the  shire  of  Perth,  in  Scot- 
land, as  for  England  to  maintain  or  hold  such  relation  with  any  tribe  of 
American  Indians  outside  of  her  own  colonial  possessions  in  America." 
Mr.  Adams,  Sec.  of  State,  to  M.  Poletica,  Mar.  30,  1822,  MS.  notes,  For.  Leg. ; 

Mr.  Marcy,  Sec.  bf  State,  to  Mr.  Dallas,  July  26,  1856,  MS.   Inst.  Great 

Britain. 
See,  for  provisions  relating  to  the  Indians,  treaties  of  the  United  States:  With 

Great  Britain,  Nov.  19,  1794,  Art.  III.;  May  4,  1796;  Dec.  24,  1814,  Art. 

IX.;  with  Spain,  Oct.  27,  1795,  Art.  Y.;  with  France,  April  30,  1803,  Art. 

VI. ;  with  Mexico,  Dec.  30,  1853,  Art.  II. 

"The  Choctaws  are  not  citizens  of  the  United  States,  but  constitute  a 
separate  nation,  with  its  own  form  of  government  and  laws,  existing 
within  the  borders  of  the  United  States  under  and  in  accordance  with 
treaty  stipulations.  Those  people  who  go  into  that  country  must  be 
held  to  have  done  so  with  full  knowledge  of  those  treaties  and  of  the 
Choctaw  laws,  and  must  accept  the  consequences  if  they  are  found  to 
be  there  without  proper  authority." 

]Mr.  Adee,  Acting  Secretary  of  State,  to  Sir  J.  Pauncefote,  British  ambassador, 
Aug.  2,  1894  (For.  Rel.  1894,  249),  in  relation  to  the  case  of  certain  per- 
sons who  claimed  to  be  British  subjects  and  alleged  that  they  were  to  be 
unjustly  removed  from  the  Choctaw  country. 

For  comments  on  the  Five  Civilized  TriV>es  occupying  the  Indian  Territory,  and 
recommendations  of  change  in  their  relations  to  the  United  States,  see 
Annual  Messages  of  the  Presidents,  Dec.  9,  1891;  Dec.  6,  1897;  Dec.  5, 
1898.  These  tribes  are  the  Cherokee,  Choctaw,  Chickasaw,  ]Muscogee 
(or  Creek),  and  Seminole.  As  to  the  legal  status  of  the  British  North 
American  Indians  in  Canada,  see  Colonial  Reports,  3Iisc.,  Dec.  1900, 
Cd.  427. 

(2)    INABILITY   TO   TR.\N'SMIT   TITLE. 

§  16. 

On  the  discover}'  of  the  American  continents,  the  nations  of  Europe 
established  the  principle  "  that  discovery  gave  title  to  the  government 
by  whose  subjects,  or  by  whose  authority,  it  was  made,  against  all 
other  European  governments,  which  title  might  be  consummated  by 
possession.  The  exclusion  of  all  other  luiropeans  necessarily  gave  to 
the  nation  making  the  discovery  the  sole  right  of  acquiring  the  soil 
from  the  natives,  and  establishing  settlements  upon  it.  *  *  *  The 
rights  of  the  original  inhabitants  were  in  no  instance  entirely  dis- 
regarded, but  were  necessarily,  to  a  considerable  extent,  impaired. 
They  were  admitted  to  be  the  rightful  occupants  of  the  soil,  with  a 
legal  as  well  as  just  claim  to  retain  possession  of  it.  and  to  use  it 
according  to  their  own  discretion;  but,     *     *     *     while  the  different 


36  states:  characteristics  and  classification.       [S  1<)- 

nations  of  Europe  respected  the  right  of  the  natives,  as  occupants, 
they  asserted  the  ultimate  dominion  to  be  in  themselves,  and  claimed 
and  exercised,  as  a  consequence  of  this  ultimate  dominion,  a  power  to 
grant  the  soil,  while  yet  in  possession  of  the  natives.  These  grants 
have  been  understood  by  all  to  convey  a  title  to  the  grantees,  subject 
onl}' to  the  Indian  right  of  occupancy.  *  *  *  The  power  now  pos- 
sessed b}'  the  (xovernmentof  the  United  States  to  grant  lands,  resided, 
while  we  were  colonies,  in  the  crown,  or  its  grantees.  *  *  *  xhe 
existence  of  this  power  must  negative  the  existence  of  any  right  which 
may  conflict  with,  and  control  it.  An  absolute  title  to  lands  can  not 
exist,  at  the  same  time,  in  different  persons,  or  in  different  govern- 
ments. *  *  *  AH  our  institutions  recognize  the  absolute  title  of 
the  crown,  subject  only  to  the  Indian  right  of  occupancy,  and  recog- 
nize the  absolute  title  of  the  crown  to  extinguish  that  right.  This  is 
incompatible  with  an  absolute  and  complete  title  in  the  Indians." 

Marshall,  C.  J.,  .Johnson  r.  Mcintosh  (1828),  8  Wheaton,  543.  It  was  there- 
fore held  that  a  title  obtained  by  private  persons  from  an  Indian  tribe 
northwest  of  the  Ohio,  in  1773  and  1775,  was  invalid. 

This  opinion  is  quoted  by  Mr.  Clayton,  Sec.  of  State,  to  Mr.  Squier,  May  1, 1849, 
MS.  Inst.  Am.  States,  XV.  76  as  "very  apposite  to  the  question  respecting 
the  Mosquito  shore."  Mr.  Clayton  also  cited  Kent's  Comm.  III.  **  360  to 
400,  and  Jackson  v.  Porter,  2  Paine' s  C.  C.  457. 

See  memorandum  of  Mr.  J.  C.  Bancroft-Davis,  Assistant  Secretary,  on  the 
Bulama  question,  Int.  Arbitrations,  II.  1918. 

No  distinction  was  taken  between  vacant  lands  and  lands  occupied  l)y 
the  Indians.  The  title,  subject  only  to  the  right  of  occupancv  by  the 
Indians,  was  admitted  to  be  in  the  King,  and  he  could  grant  the  lands 
awa\',  or  reserve  them  for  the  Indians. 

Johnson  v.  Mcintosh,  8  AVheaton,  543;  Jones  v.  Meehan  (1899),  175  U.  S.  1. 
See  United  States  v.  Fernandez,  10  Peters,  303. 

"It  has  been  generally  accepted  that  a])original  inhabitants  in  a 
.savage  state  have  not  such  a  title  to  the  land  whore  they  may  dwell  or 
roam  as  to  enable  them  to  confer  it  upon  individuals,  espeoially  from 
another  country.'' 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Ilackett,  June  12,  1873,  99  MS.  Dom.  Let.  207. 

The  United  States  received  from  Great  Britain  b}^  the  treaty  which 
terminated  the  Revolution  a  ratification  of  prior  title  to  all  the  lands 
within  their  boundaries,  subject  only  to  the  Indian  right  of  occu- 
pancy," 

Grants  made  l)y  Congress  in  lands  reserved  to  the  Indian  by  treaty 
operate  only  after  the  extinguishment  of  the  Indian  title.* 

«0p.  321,  Berrien,  18.30. 

6  3  Op.  56,  Butler,  1836;  3  (Jp.  205,  Butler,  1837. 


§  17.]  AMERICAN    INDIANS.  37 

The  removal  of  the  Creeks  from  their  reserved  lands,  without  an 
intention  to  return,  was  an  abandonment  that  caused  the  right  of 
occupancy  and  possession  to  vest  immediately  in  the  United  States." 

In  certain  cases  the  national  capacity  to  hold  absolute  title  to  lands 
in  fee  has  been  specially  conceded  to  Indians  by  treaty,  as  in  the  case 
of  the  Choctaws;  but,  otherwise,  there  exists  only  the  right  of  occu- 
pancy.* 

(3)    TREATIES. 

§  17. 

By  the  act  of  Congress  of  March  3,  1871,  16  Stat.  566,  Rev.  Stats. 
§  2079,  •'"  no  Indian  nation  or  tribe  within  the  territory  of  the  United 
States  shall  be  acknowledged  or  recognized  as  an  independent  nation, 
tribe,  or  power  with  whom  the  United  States  may  contract  by  treaty; 
but  no  obligation  of  any  treaty  lawfully  made  and  ratified  with  any 
such  Indian  nation  or  tribe  prior  to  March  3,  1871,  shall  be  hereby 
invalidated  or  impaired."  Since  the  passage  of  this  act,  agreements 
with  the  Indian  tribes  have  been  made,  subject  to  the  approval  of 
Congress. 

An  Indian  treaty,  when  duly  solemnized,  is  as  much  a  law  of  the 
land  as  is  a  treat}'  with  a  foreign  power. 

Turner  v.  Miss.  LTnion,  5  ]\IcLean,  344;  1  Op.  465,  Wirt,  1821. 

When  it  is  ratified  in  due  form,  the  courts  cannot  inquire  whether 
the  tribe  was  properh"  represented  Ijy  the  headmen  who  assented 
to  it. 

Fellows  V.  Blacksmith,  19  How.  366. 

An  Indian  treat}',  like  other  treaties,  may  be  rendered  municipally 
ineffective  by  subsequent  inconsistent  Federal  legislation;  but  it  over- 
rides inconsistent  State  laws. 

Cherokee  Tobacco,  11  Wall.  616,  affirming  1  Dill.  204;  Love  r.  Pamplin,  21 
Fed.  Rep.  755. 

Only  the  United  States  can  enforce  the  removal  of  the  Seneca 
Indians  under  the  treaties  by  which  they  agreed  to  remove  west  of 
the  Mississippi. 

Fellows  V.  Blacksmith,  19  How.  366. 

A  question  of  disputed  boundary  may  be  settled  by  the  United 
States  and  an  Indian  tribe,  between  whom  a  previous  treaty  had  been 

«3  Op.  230,  Butler,  1837;  3  Op.  389,  Grundy,  1838. 

''3  0p.  322,  Butler,  1838.  See,  also,  Cherokee  Nation  v.  Southern  Kansas  liail- 
way  Co.,  135  U.  S.  641,  supra,  33. 


38  states:  characteristics  and  classification.      [§  IT. 

made,  which  loft  the  ])oundary  in  some  respects  uncertain;  and  private 
rights  are  hound  thereby. 

Lattiiuer  >:  Poteet,  14  Pet.  4. 

It  is  comjoetent  for  the  United  States  in  the  exercise  of  the  treatj^- 
making  i)ower  to  stipulate,  in  a  treat}-  with  an  Indian  tribe,  that 
within  the  territory  there))}-  ceded  the  laws  of  the  United  States,  then 
or  thereafter  enacted,  prohibiting  the  introduction  and  sale  of  spirit- 
uous liquors  in  the  Indian  country  shall  be  in  full  force  and  effect 
until  otherwise  directed  by  Congress  or  the  President  of  the  United 
States.  Such  a  stipulation  operates  proprio  vigors  and  is  binding 
upon  the  courts  although  the  ceded  territory  is  situate  within  an 
organized  count}^  of  a  State. 

r.  S.  V.  Forty-three  Gallons  of  Whisky,  93  U.  S.  188. 

Indian  treaties  are  to  be  construed,  other  things  being  equal,  liber- 
ally to  the  Indian  parties. 

Kansas  Indians,  5  Wall.  737;  Jones  r.  :Meehan  (1899),  175  U.S.  1. 

In  Meigs  v.  ]\IcClung,  9  Cranch,  11,  it  was  held  that  a  treaty  with  the  Chero- 
kees  concerning  lands,  being  the  (contract  of  both  parties,  could  not  be 
controlled  as  to  its  plain  terms  l)y  the  acts  of  an  agent  of  the  United 

States. 

Where  the  right  of  an  Indian  tribe  to  the  possession  and  use  of  cer- 
tain lands,  as  long  as  it  may  choose  to  occupy  them,  is  assured  by 
treaty,  a  grant  of  such  lands,  absolutely  cum  onere,  by  Congress,  to  aid 
in  Ijuilding  a  railroad,  violates  an  express  stipulation;  and  a  grant  in 
general  terms  of  "land"  cannot  ])e  construed  to  embi-ace  them. 

The  act  of  March  8,  1S63  (12  Stat.  772),  to  aid  in  the  construction 
of  certain  railroads  in  Kansas,  embraces  no  part  of  the  lands  reserved 
to  the  Great  and  Little  Osages  h\  the  treaty  of  June  2,  1825  (7  Stat. 
21t>),  and  the  treaty  concluded  September  29,  1865,  and  proclaimed 
January  21.  1S()7  (11  Stat.  <)S7),  neither  makes  nor  recognizes  a  grant 
of  such  lands.  The  effect  of  the  treaty  is  simply  to  provide  that  an}^ 
right  of  the  companies  designated  l)y  the  State  to  Imild  the  roads  should 
not  be  barred  or  impaired  by  reason  of  the  general  terms  of  the  treaty, 
but  not  to  declare  that  such  rights  existed. 

J.cavcnworth,  etc.  Railroad  Co.  /■.  United  States,  92  l^  S.  733. 

By  the  treaty  with  the  Ottawas,  the  United  States  agreed  with  the 
Ottawas  to  pay  to  a  certain  person  a  certain  sum  of  money.  It  was 
held  that  the  mone}-  nuist  be  paid,  without  requiring  proof  of  the 
justice  of  the  claim. 

•2  ()\).  .^)()2,  Taney,  1833. 

By  a  treaty  with  the  Miami  Indians  the  United  States  agreed  to 
grant  to  each  of  certain  persons  a  section  of  land  out  of  the  territory 


§  18.]  THE    HOLY    SEE.  39 

ceded  by  the  treat3\     It  was  advised  that  no  other  parcels  than  those 
defined  could  be  substituted  for  them. 

2  Op.  56S,  Taney,  1833. 

6.  The  Holy  See. 

§18. 

The  Pope,  though  deprived  of  the  territorial  dominion  which  he 
formerl}'  enjoyed,  holds,  as  sovereign  pontiff  and  head  of  the  Roman 
Catholic  Church,  an  exceptional  position.  Though,  in  default  of  ter- 
ritory, he  is  not  a  temporal  sovereign,  he  is  in  many  respects  treated 
as  such.  He  has  the  right  of  active  and  passive  legation,  and  his  envoi's 
of  the  first  class,  his  apostolic  nuncios,  are  specially  privileged.  Nev- 
ertheless he  does  not  make  war,  and  the  conventions  which  he  con- 
cludes with  states  are  not  called  treaties,  but  concordats.  His  relations 
with  the  Kingdom  of  Italy  are  governed,  unilaterally,  by  the  Italian 
law  of  May  13,  18T1,  called  ''  the  law  of  guarantees,''  against  which 
Pius  IX  and  Leo  XIII  have  not  ceased  to  protest. 

Rivier,  Principes  du  Droit  des  Gens,  I.  120-123. 

"Your  dispatch  No.  379,  on  the  subject  of  the  reception  of  the  Papal 
nuncio  and  your  visit  to  him,  has  been  read  with  much  interest. 

"While  the  probabilities  seem  to  be  almost  entireh' against  the  pos- 
sibilit}'  of  the  restoration  of  any  temporal  power  to  the  Pope,  he  is  still 
recognized  as  a  sovereign  by  man}'  of  the  powers  of  the  world,  which 
receive  from  him  diplomatic  representatives  in  the  person  of  either  a 
nuncio  or  a  legate,  or  possibly  in  some  other  capacity,  and  which  pow- 
ers also  accredit  to  him  certain  diplomatic  representatives. 

''With  all  such  arrangements  this  Government  abstains  from  inter- 
ference or  criticism.  It  is  the  right  of  those  powers  to  determine  such 
questions  for  themselves;  and  when  one  of  them,  at  whose  court  this 
Government  has  a  representative,  receives  a  representative  from  the 
Pope  of  higher  rank  than  that  of  the  representative  of  the  United 
States,  it  Vjecomes  the  duty  of  the  latter  to  observe  toward  the  Pope's 
representative  the  same  courtesies  and  formalit}'  of  the  first  visit,  pre- 
scribed b}^  the  conventional  rules  of  intercourse  and  ceremonial,  and  of 
the  precedence  of  diplomatic  agents,  which  have  been  adopted  and 
almost  invariably  acted  upon  for  the  last  sixt}'  years. 

"In  the  case  which  forms  the  subject  of  your  very  interesting  dis- 
patch 3'ou  pursued  the  course  which  alone  would  have  been  expected 
from  one  of  3'our  accustomed  prudence  and  of  your  experience  and 
familiarity  with  the  proprieties  of  such  occasions." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Gushing,  Minister  to  Spain,  June  4,  1875,  For. 

Rel.  1875,  p.  1119. 
See,  as  to  the  withdrawal  of  the  exequaturs  of  consuls  of  the  Pontifical  States, 

circular  of  Mr.  Evarts,  Sec.  of  State,  to  diplomatic  officers,  April  3,  1877. 

The  exequaturs  of  Papal  consuls  in  the  United  States  had  not  then  been 

formallv  withdrawn. 


40  states;  characteristics  and  classification.       [§  19. 

'•  I  luivo  to  acknowledge  your  letter  of  the  23d  instant,  inquiring,  by 
a  .series  of  interrogatories  (twelve  in  number),  whether  it  is  c'ompati- 
ble  with  his  ofiieial  dut\'  for  the  United  States  minister  to  Italy  to 
present  to  His  Holiness  the  Pope  and  Cardinal  Simeoni  a  memorial 
from  the  creditors  of  Archbishop  Purcell  and  transmit  the  repl}'  thereto, 
or  whether  the  minister  can  ]>e  instructed  by  this  Department  to  do 
so  personally  or  through  an  agent. 

"To  these  questions  I  repl}^:  This  Government,  when  seeking 
redress  for  citizens  of  the  United  States  from  residents  in  Italy,  is 
limited  to  diplomatic  appeals  to  the  King  of  Italy,  either  through  its 
minister  at  Rome  or  His  Majesty's  minister  at  Washington.  It  can 
not  address  the  Pope  personally,  and  a  minister  to  a  foreign  country 
can  only  communicate  officially  with  persons  living  under  its  sover- 
eignty through  the  channels  of  customary  international  intercourse. 

"It  is  not  consistent  with  the  public  service  for  one  of  our  foreign 
ministers  to  press  on  the  tribunals,  ecclesiastical  or  lay,  of  the  Gov- 
ernment to  which  he  is  accredited,  the  collection  of  private  debts. 
The  foreign  minister,  in  seeking  redress  under  his  Government's  in- 
structions for  injuries  to  his  country  or  its  citizens,  must  alone  address 
the  sovereign  to  whom  he  is  accredited;  and  what  the  minister  can  not 
be  instructed  to  do  officially  he  can  not  be  authorized  to  do  in  his  pri- 
vate capacity,  either  personally  or  through  an  agent." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Dwyer,  Nov.  7, 1887,  For.  Rel.  1887, 642;  copy 
transmitted  on  the  same  day  to  3Ir.  Stallo,  United  States  mini.ster  to  Italy, 
for  his  information,  id.  641. 

IV.     THE  STATE  AND  ITS  GOVERNMENT. 

1.  Distinction  between  State  and  Government. 

§  19. 

Although,  in  speaking  of  the  state,  we  commonly  think  of  the  organ- 
ization called  the  government,  yet  the  two  ideas  are  separable. 
A\'hile  it  is  true  that  a  new  state  is  not  recognized  till  a  government 
has  been  established  in  it  capable  of  performing  international  obli- 
gations, 3'et  it  is  also  true  that,  after  such  recognition  has  once  been 
given,  the  state  may  continue  to  exist,  and  its  existence  may  con- 
tinue to  be  acknowledged,  even  though  the  government  may  have  been 
overthrown  by  an  alien  invader  or  destroyed  b}'  domestic  factions,  so 
that  for  the  time  being  there  is  no  organization  that  can  be  treated  as 
the  repository  of  tiie  national  power.  Of  the.se  distinctions  ample 
illustrations  will  be  found  in  the  next  chapter,  under  the  title 
"Recognition." 


§  20.]  DE    FACTO    GOVERNMENTS.  41 

2.  De  Facto  Goverxmexts. 

(1)  different  kinds. 

§  20. 

Classification  and       "There  are  several  degrees  of  what  is  called  de  facto 
Powers.  government. 

"Such  a  government,  in  its  highest  sense,  assmnes  a  character verj- 
closely  resembling  that  of  a  lawful  government.  This  is  when  the 
usurping  government  expels  the  regular  authorities  from  their  cus- 
tomary seats  and  functions,  and  establishes  itself  in  their  place,  and  so 
becomes  the  actual  government  of  a  country.  The  distinguishing 
characteristic  of  such  a  government  is,  that  adherents  to  it  in  war 
against  the  government  de  jure  do  not  incur  the  penalties  of  treason; 
and  under  certain  limitations,  obligations  assumed  by  it  in  behalf  of 
the  country,  or  otherwise,  will,  in  general,  be  respected  h\  the  gov- 
ernment de  jure  when  restored. 

"Examples  of  this  description  of  government  de  facto  are  found  in 
English  history.  The  statute  II.  Henry  VII.,  c.  1  (2  British  Stat,  at 
Large,  82),  relieves  from  penalties  for  treason  all  persons  who,  in 
defence  of  the  King,  for  the  time  being,  wage  war  against  those  who 
endeavor  to  subvert  his  authority  by  force  of  arms,  though  warranted 
in  so  doing  b}^  the  lawful  monarch.     (4  Comm.  77.) 

"But  this  is  where  the  usurper  obtains  actual  possession  of  the  royal 
authority  of  the  kingdom;  not  when  he  has  succeeded  only  in  estab- 
lishing his  power  over  particular  localities.  Being  in  possession,  alle- 
giance is  due  to  him  as  king  de  facto. 

"Another  example  ma}^  be  found  in  the  Government  of  England 
under  the  Commonwealth,  first  by  Parliament,  and  afterwards  by 
Cromwell  as  Protector.  It  was  not,  in  contemplation  of  law,  a  gov- 
ernment dejure,  but  it  was  a  government  de  facto  in  the  most  absolute 
sense.  It  incurred  obligations  and  made  conquests  which  remained  the 
obligations  and  conquests  of  England  after  the  restoration.  The  better 
opinion  doubtless  is,  that  acts  done  in  obedience  to  this  Government 
could  not  be  justly  regarded  as  treasonable,  though  in  hostility  to  the 
King  dejure.  Such  acts  were  protected  from  criminal  prosecution  by 
the  spirit,  if  not  by  the  letter,  of  the  statute  of  Henry  the  Seventh.  It 
svas  held  otherwise  by  the  judges  by  whom  Sir  Henry  Vane  was  tried 
for  treason  (6  State  Trials,  119),  in  the  year  following  the  restoration. 
But  such  a  judgment  in  such  a  time  has  little  authority.     *     *     * 

"But  there  is  another  description  of  government,  called  also  b}" 
publicists  a  government  de  facto,  but  which  might,  perhaps,  be  more 
aptly  denominated  a  government  of  paramount  force.     Its  distinguish 
ing  characteristics  are  (1),  that  its  existence  is  maintained  by  active 
military  power  within  the  territories,  and  against  the  rightful  authority 


42  states:  characteristics  and  classification.      [§  20. 

of  an  established  and  lawful  government;  and  (2),  that  while  it  exists  it 
must  necessarih'  be  obeyed  in  civil  matters  b}:  private  citizens  who,  by 
acts  of  oliedience  rendered  in  submission  to  such  force,  do  not  become 
responsible,  as  wrongdoers,  for  those  acts,  though  not  warranted  by 
the  laws  of  the  rightful  government.  Actual  governments  of  this  sort 
are  established  over  districts  differing  greatly  in  extent  and  conditions. 
They  are  usually  administered  directly  ))}•  military  authority,  but  they 
may  be  administered,  also.  ])v  civil  authority,  supported  more  or  less 
directly  by  military  force. 

"One  example  of  this  sort  of  government  is  found  in  the  case  of 
Castine,  in  Maine,  reduced  to  British  possession  during  the  war  of 
1812.  *  *  *  [United  States  v.  Rice,  4  Wheaton,  253.]  A  like 
example  is  found  in  the  case  of  Tampico,  occupied  during  the  war 
with  Mexico  b}-  the  troops  of  the  United  States.  *  *  *  [Fleming 
V.  Page,  9  Howard,  614.]  These  were  cases  of  temporary  possession  of 
territory'  by  lawful  and  regular  governments  at  war  with  the  country  of 
which  the  territorv  so  possessed  was  part." 
Thoringtonr.  Smith  (1868),  8  Wall.  1,  8-10. 

Amelia  Island,  on  the  Florida  coast,  at  the  time  belonging  to  Spain, 
having  been  seized  and  occupied"  by  the  United  States  in  1817,  on  the 
ground  that  this  was  necessary  to  root  out  certain  buccaneers  who  were 
there  congregated,  it  was  maintained  that  the  possession  of  the  United 
States  could  l)e  contested  only  bv  Spain,  and  that  the  seizure  by  the 
United  States,  for  a  viohition  of  its  ow^n  law,  of  a  vessel  of  a  third 
power  within  the  territorial  waters  of  the  island,  could  not  be  con- 
tested by  such  power  on  the  ground  of  Spain's  titular  sovereignty. 

^Ir.  Ciallatin,  minister  to  France,  to  Baron  Pasquier,  French  minister  of  foreign 
affairs,  June  28,  1821,  Gallatin's  Works,  II.  187. 

Grants  of  land  made  b}-  a  government  in  territory  over  which  it 
exercises  political  jurisdiction  de  facto,  but  which  does  not  rightfully 
belong  to  it,  are  invalid  as  against  the  government  to  which  the  terri- 
tory rightfully  belongs.  When  the  true  boundar}^  is  ascertained,  or 
adjusted  by  agreement,  grants  made  by  either  sovereign  beyond  the 
limits  of  his  rightful  territory,  whether  he  had  possession  or  not,  fail 
for  want  of  title  in  the  grantor,  unless  confirmed  by  proper  stipulations. 

Coffee  V.  Groover  (1887),  12:5  V.  8.  1. 

While  the  court  announced  and  enforced  in  this  case  the  rule  above  stated,  it 
made  the  following  observation,  obiter: 

"This  is  the  general  rule.  Circumstances  may  possibly  exist  which  would 
make  valid  the  grants  of  a  government  de  facto;  as,  for  example,  where 
they  contravene  no  other  rights.  Grants  of  public  domain  made  by 
Napoleon  as  sovereign  de  facto  of  France,  may  have  had  a  more  solid 
basis  of  legality  than  similar  grants  made  by  him  as  sovereign  de  facto  of 
a  Prussian  province,  derogatory  to  the  rights  of  the  Ciovernment  and  King 
of  Prussia." 


§  20.]  DE    FACTO    GOVERNMENTS.  43 

"When  a  colony  is  in  revolt,  and  before  its  independence  has  been 

aclcnowledged  by  the  parent  country,  the  colonial  ter- 
Insarrection  and      •,  i     i  •      j.u  i?  "i    j.-  •    i  ^    ^ 

ritory  belongs,  in  the  sense  or  revolutionary  right,  to 

the  former,  and  in  that  of  legitimacv.  to  the  latter.  It 
would  be  monstrous  to  contend  that  in  such  a  contingency  the  colonial 
territory  is  to  be  treated  as  derelict,  and  subject  to  voluntary  acquisi- 
tion b}"  any  third  nation.  That  idea  is  abhorrent  to  all  the  notions  of 
right  which  constitute  the  international  code  of  Europe  and  America. 
"And  \'et  the  assumption  that,  pending  a  war  of  colonial  revolution, 
all  territorial  rights  of  both  parties  to  the  war  become  extinguished  and 
the  colonial  territory  is  open  to  seizure  In^  anj^jody.  is  the  foundation  of 
most  of  the  disputed  pretensions  of  Great  Britain  in  Central  America."' 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Dallas,  July  26,  18.56,  MS.  Instr.  Great  Britain, 
XVli.  11,  12. 

"It  is  the  duty  of  foreigners  to  avoid  all  interference  under  such 
circumstances  [in  cases  of  civil  war],  and  to  submit  to  the  power  which 
exercises  jurisdiction  over  the  places  where  thev  resort,  and,  while 
thus  acting,  they  have  a  right  to  claim  protection,  and  also  to  be  ex- 
empted from  all  vexatious  interruption,  when  the  ascendanc}'  of  the 
parties  is  temporarily  changed  by  the  events  of  the  contest.  Undoubt- 
edly the  considerations  you  urge  respecting  the  true  character  of  an 
armed  opposition  to  a  government  are  entitled  to  much  weight.  There 
may  be  local  insurrections,  armed  opposition  to  the  laws,  which  carr}^ 
with  them  none  of  the  just  consequences  recognized  b\'  the  law  of 
nations  as  growing  out  of  a  state  of  civil  war.  No  fixed  principle  can 
be  established  upon  this  subject,  because  much  depends  upon  existing 
circumstances.  Cases,  as  they  arise,  must  be  determined  by  the  facts 
which  they  present:  and  the  avowed  objects  of  the  parties,  their  rela- 
tive strength,  the  progress. they  respectively  make,  and  the  extent  of 
the  movement,  as  well  as  other  circumstances,  must  be  taken  into  view. 

"  While  contending  parties  are  carrying  on  a  civil  war  those  portions 
of  the  country  in  the  possession  of  either  of  them  become  subject  to  its 
jurisdiction,  and  the  persons  residing  there  owe  to  it  temporary  obedi- 
ence. But  when  such  possession  is  changed  by  the  events  of  the  war 
and  the  other  party  expels  its  opponents,  the  occupation  it  acquires 
carries  with  it  legitimate  authority,  and  the  right  to  assume  and  exer- 
cise the  functions  of  the  government.  But  it  carries  with  it  no  right, 
so  far,  at  an}-  rate,  as  foreigners  are  concerned,  to  give  a  retroactive 
effect  to  its  measures  and  expose  them  to  penalties  and  punishments 
and  their  property  to  forfeiture  for  acts  which  were  lawful  and  ap- 
proved by  the  existing  government  when  done." 

Mr.  Cass,  Sec.  of  State,  to  ]\Ir.  Osma,  Peruvian  minister,  May  22,  1858,  S.  Ex. 
Doc.  69,  .35  Cong.  1  se.s.s.  17.  See  also  Br.  and  For.  State  Papers,  XXXI. 
1097  et  seq. 


44  states:  characteristics  and  classification.       [§  20. 

Mr.  Catsg'g  note  was  based  on  an  opinion  of  Attorney-General  Black,  May  15, 
1858,  9  Op.  140.  An  opinion  of  Mr.  Reverdy  Johnson,  as  counsel,  con- 
troverting some  of  Attorney-General  Black's  positions,  is  printed  in  S. 
Ex.  Doc.  25,  35  Cong.  2  sess. 

The  note  of  Mr.  Cass  and  the  opinions  just  cited  relate  to  the  cases  of  the 
Georgiana  and  Lizzie  Thompson,  a  full  history  of  which  is  given  in  Moore, 
Int.  Arbitrations,  II.,  chap,  xxxvi.,  1593-1614.  These. cases  are  referred 
to  in  Lawrence's  Wheaton  (1863),  575,  where  it  is  stated  that  Mr.  Cass 
maintained  that  "  the  citizens  or  subjects  of  a  foreign  nation  may  carry  on 
commerce  with  the  portions  of  a  country  in  the  hands  of  either  of  the 
parties  to  a  civil  war,  and  without  awaiting  any  action  on  the  part  of  their 
own  government "  toward  the  recognition  of  the  insurgents.  Mr.  Cass, 
however,  on  the  authority  of  Attorney-General  Black,  went,  in  the  par- 
ticular cases  in  question,  somewhat  further  than  this,  and  claimed  for 
those  in  temporary  defado  control  an  absolute  right  to  dispose  of  the 
public  proi)erty  of  the  nation.  This  claim  was  not  ultimately  sustained 
l)y  the  United  States,  and  the  cases  were  dropped  (Moore,  Int.  Arbitra- 
tions, II.  1612) .  It  is  probable  that  this  result  should  be  understood  to 
affect  not  the  general  propositions  stated  by  Mr.  Cass  when  applied  to 
ordinary  commercial  intercourse,  but  rather  the  Inroad  interpretation 
sought  to  be  given  to  them  in  ascribing  to  insurgents,  who  were  after- 
wards defeated  and  dispersed,  the  same  powers  within  the  territory  tem- 
porarily controlled  by  them  as  belonged  to  the  permanent  government. 

De facia  g-overniiients  ''are  of  two  kinds.  One  of  them  is  such  as 
exists  after  it  has  expelled  the  regular!}'  constituted  authorities  from 
the  seats  of  power  and  the  public  offices  and  established  its  own  func- 
tionaries in  their  places,  so  as  to  represent  in  fact  the  sovereignty  of 
the  nation.  *  *  *  The  other  kind  of  de  facto  governments  *  *  *  is 
such  as  exists  where  a  portion  of  the  inhabitants  of  a  country  have  sep- 
arated themselves  from  the  parent  state  and  established  an  independent 
government.  The  validity  of  its  acts,  both  against  the  parent  state 
and  its  citizens  or  subjects,  depends  entirely  upon  its  ultimate  success. 
If  it  fails  to  establish  it.self  permanently,  all  such  acts  perish  with  it. 
If  it  succeed,  and  become  recognized,  its  acts  from  the  commence- 
ment of  its  existence  are  upheld  as  those  of  an  independent  nation. 
Such  was  the  case  of  the  State  governments  under  the  old  confedera- 
tion on  their  separation  from  the  British  Crown.  Having  made  good 
their  declaration  of  independence,  everything  they  did  from  that  date 
was  as  valid  as  if  their  independence  had  been  at  once  acknowledged. 
Confiscations,  therefore,  of  enemy's  propertv  made  by  them  were 
sustained  as  if  made  by  an  independent  nation.  But  if  they  had 
failed  in  securing  their  independence  and  the  authority  of  the  King 
had  been  reestablished  In  this  countr}',  no  one  would  contend  that 
their  acts  against  him,  or  his  loyal  subjects,  could  have  been  upheld 
as  resting  upon  any  legal  foundation. 

"  No  case  has  been  cited  in  argument,  and  we  think  none  can  be 
found,  in  which  the  acts  of  a  portion  of  a  state  unsuccessfully 
attempting  to  establish  a  separate  revolutionary  government  have 
been  sustained  as  a  matter  of  legal  right.     As  justly  observed  by  the 


§  21.]  MILITARY    OCCUPATION.  45 

late  Chief  Justice  in  Shortridge  <&  Co.  v.  Macon.,  decided  in  the  cir- 
cuit, and,  in  all  material  respects,  like  the  one  at  bar,  '  Those  who 
engage  in  rebellion  must  consider  the  consequences.  If  they  succeed, 
rebellion  becomes  revolution,  and  the  new  government  will  justify  its 
founders.  If  they  fail,  all  their  acts  hostile  to  the  rightful  government 
are  violations  of  law,  and  originate  no  rights  which  can  be  recog- 
nized by  the  courts  of  the  nation  whose  authority  and  existence  have 
been  alike  assailed.'     Chase's  Decisions,  136.'' 

Williams  v.  Bniffy  (1877),  96  U.  S.  176,  185-186. 

(2)    MILITARY   OCCUPATION. 

§21. 

"On  the  first  day  of  September,  1814,  Castine  was  captured  by  the 
enemy,  and  remained  in  his  exclusive  possession,  under 
y  recognize   gov-  ^^  command  and  control  of  his  military  and  naval 
ernment:  Castine.  .  .^        •  pi  <• 

forces,  until  the  ratincation  of  the  treaty  of  peace  in 

Februar}^,  1815.  During  this  period  the  British  Government  exer- 
cised all  civil  and  militaiy  authority  over  the  place,  and  established  a 
custom-house  and  admitted  goods  to  be  imported,  according  to  regula- 
tions prescribed  by  itself,  and,  among  others,  admitted  the  goods  upon 
which  duties  are  now  demanded.  These  goods  remained  at  Castine 
until  after  it  was  evacuated  by  the  enemy,  and  upon  the  reestablish- 
ment  of  the  American  Government  the  collector  of  the  customs,  claim- 
ing a  right  to  American  duties  on  the  goods,  took  the  bond  in  question 
from  the  defendant  for  the  security  of  them. 

•'Under  these  circumstances,  we  are  of  opinion  that  the  claim  for 
duties  can  not  be  sustained.  B}'  the  conquest  and  military  occupation 
of  Castine  *  *  *  the  sovereignty  of  the  United  States  over  the 
territory  was,  of  course,  suspended,  and  the  laws  of  the  United  States 
could  no  longer  be  rightf  ulh"  enforced  there,  or  be  obligatory  upon  the 
inhabitants  who  remained  and  submitted  to  the  conquerors.  By  the 
surrender  the  inhabitants  passed  under  a  temporaiy  allegiance  to 
the  British  Government,  and  were  bound  by  such  laws,  and  such  only, 
as  it  chose  to  recognize  and  impose.  *  *  *  Castine  was,  there- 
fore, during  this  period,  so  far  as  respected  our  revenue  laws,  to  be 
deemed  a  foreign  port,  and  goods  imported  into  it  by  the  inhabitants 
were  subject  to  such  duties  only  as  the  British  Government  chose  to 
require.  Such  goods  were,  in  no  correct  sense,  imported  into  the 
United  States.  The  subsequent  evacuation  by  the  enemy,  and  resump- 
tion of  authority'  by  the  United  States,  did  not,  and  could  not,  change 
the  character  of  the  previous  transactions." 

Mr.  Justice  Story,  delivering  the  opinion  of  the  court,  United  States  r.  Rice 
(1819),  4  Wheaton,  246. 

Mr.  Justice  Story  had  previously  held,  on  circuit,  that  Castine,  while  occupied 
by  the  British,  was  a  "foreign  port"  in  respect  of  the  nonimportation 
acts.     (United  States  v.  Hayward  (1815),  2  Gallison,  485.) 


46  states:  characteristics  and  classification.      [§  21. 

The  rights  of  the  mihtary  occupant  are  discussed  ])y  Attorney-General  Ber- 
rien, 2  Op.  321  (1830),  and  by  Attorney-General  Black,  9  Op.  140  (1858). 

On  the  other  hand,  it  was  held  that  goods  imported  into  the  United 
States  from  Tampico,  ISIexieo,  in  18-1:7,  while  that  port 

ampico.  ^^^__  .^^  ^j^^  military  occupation  of  the  American  forces, 
were  subject  to  duties  under  the  revenue  laws  as  goods  imported  from 
a  foreign  country.  It  was  true,  said  the  court,  ""that,  when  Tampico 
had  been  captured,  and  the  State  of  Tamaulipas  subjugated,  other 
nations  were  bound  to  regard  the  country,  while  our  possession  con- 
tinued, as  the  territory  of  the  United  States,  and  to  respect  it  as 
such.  *  *  *  But  yet  it  was  not  a  part  of  this  Union.  *  *  * 
The  ])oundaries  of  the  United  States,  as  they  existed  when  war  was 
declared  against  Mexico,  were  not  extended  by  the  conquest.  *  *  * 
They  remained  unchanged.  And  every  place  which  was  out  of  the 
limits  of  the  Ignited  States,  as  previously  established  by  the  political 
authorities  of  the  Government,  was  still  foreign;  nor  did  our  laws 
extend  over  it." 

Fleming  r.  Page  (1850),  9  How.  603. 

"  By  the  law  of  nations  ii  conquered  territory  is  subject  to  be  gov- 
erned l)y  the  conqueror  during  his  military  possession, 

„    .  and  until  there  is  either  a  treatv  of  peace,  or  he  shall 

Mexico.  ,  .  .       '  .    . 

volimtarily  withdraw  from  it.  The  old  civil  govern- 
ment ])eing  necessarily  superseded,  it  is  the  right  and  duty  of  the  con- 
queror to  secure  his  conquest,  and  to  provide  for  the  maintenance  ol 
civil  order  and  the  rights  of  the  inhabitants.  This  right  has  been 
exercised  and  this  duty  performed  by  our  militar}-  and  naval  com- 
manders, by  the  establishment  of  temporary  governments  in  some  of  th*. 
conquered  provinces  in  Mexico,  assimilating  them  as  far  as  practicable, 
to  the  free  institutions  of  our  own  country.  In  the  provinces  of  New 
Mexico,  and  of  the  C'alifornias,  little  if  any  further  resista:nce  is  appre- 
hended from  the  inhabitants  to  the  temporary  governments  which 
have  thus,  from  the  necessity  of  the  ca.se  and  according  to  the  laws  of 
war,  been  established.  It  may  l)e  proper  to  provide  for  the  securit}' 
of  these  important  conquests  by  making  an  adequate  appropriation  for 
purpo.se  of  erecting  fortifications  and  defraying  the  expenses  neces- 
sarily incident  to  the  maintenance  of  our  possession  and  authority 
over  them.'" 

President  Polk's  second  annual  message,  1846. 

"In  })ros(H'uting  a  foreign  war  thus  duly  declared  by  Congress,  we 
have  the  right,  l)v  conquest  and  military  occupation,  to  acquire  posses- 
sion of  the  territories  of  the  enemy,  and,  during  the  war,  to  exerci.se 
the  fullest  rights  of  .sovereignty  over  it.  The  sovereignty  of  the 
enemy  is  in  such  case  Vsu.spended.''  and  his  laws  can  'no  longer  be 
rightfully  enforced"  over  the  conquered  territory,  *  or  be  obligatory 


§  21.]  MILITARY    OCCUPATION.  47 

upon  the  inhabitants  who  remain  and  submit  to  the  conqueror.  B}' 
the  surrender  the  inhabitants  pass  under  a  temporary  allegiance '  to 
the  conqueror,  and  are  'bound  by  such  laws,  and  such  only,  as'  he 
ma}^  choose  to  recognize  and  impose.  '  From  the  nature  of  the  case, 
no  other  laws  could  be  obligatory  upon  them;  for  where  there  is  no 
protection,  or  allegiance,  or  sovereignt}',  there  can  be  no  claim  to 
obedience.'  These  are  well-established  principles  of  the  laws  of  war, 
as  recognized  and  practised  by  civilized  nations;  and  they  have  been 
sanctioned  by  the  highest  judicial  tribunal  of  our  own  country." 
President  Polk's  special  message,  July  24,  1848. 

The  port  of  San  Francisco  was  occupied  by  the  United  States  as 
early  as  1846.  "  Shortly  afterward,  the  United  States  had  military 
possession  of  all  of  Upper  California.  Early  in  1847,  the  President, 
as  constitutional  commander  in  chief  of  the  Arm}^  and  Navy,  author- 
ized the  military  and  naval  commander  of  our  forces  in  California  to 
exercise  the  belligerent  rights  of  a  conqueror,  and  to  form  a  civil  gov- 
ernment for  the  conquered  country,  and  to  impose  duties  on  imports 
and  tonnage  as  militar}^  contributions  for  the  support  of  the  govern- 
ment and  of  the  army  which  had  the  conquest  in  possession.  *  *  * 
No  one  can  doubt  that  these  orders  of  the  President,  and  the  action 
of  our  Army  and  Navy  commander  in  conformity  with  them,  were 
according  to  the  law  of  arms  and  the  right  of  conquest,  or  that  they 
were  operative  until  the  ratification  and  exchange  of  a  treaty  of  peace. 
Such  would  be  the  case  upon  general  principles  in  respect  to  war  and 
peace  between  nations.  In  this  instance  it  is  recognized  by  the  treatj^ 
itself." 

Cross  V.  Harrison,  16  How.  190. 

The  proclamation  of  General  Butler  at  New  Orleans,  dated  the  1st 
and  published  on  the  6th  of  Ma}",  1862,  announcing 
that  ''all  rights  of  property"  would  be  held  "invio- 
late, subject  only  to  the  laws  of  the  United  States;"  and  that  "all  for- 
eigners not  naturalized,  claiming  allegiance  to  their  respective  govern- 
ments, and  not  having  made  oath  of  allegiance  to  the  government  of 
the  Confederate  States,"  would  be  "protected  in  their  persons  and 
propert}"  as  heretofore  under  the  laws  of  the  United  States,"  did  but 
reiterate  the  rules  established  by  the  legislative  and  executive  action 
of  the  National  Government;  and  vessels  and  cargoes  belonging  to  cit- 
izens of  New  Orleans,  or  neutrals  residing  there,  and  not  affected  by 
any  attempts  to  run  the  blockade,  or  by  an}'  act  of  hostility  against  the 
United  States,  were  protected  by  that  proclamation,  though  such  per- 
sons, by  being  identified  with  the  enemy  by  long  voluntary  residence 
and  business  relations,  may  have  Vjeen  "enemies"  within  the  meaning 
of  the  expression  as  used  in  public  law. 

The  Venice,  2  Wallace,  258. 


48  states:  characteristics  and  classification.      [§  21. 

A  conqueror  has  a  right  to  displace  the  preexisting  authoritj^  and 
to  assume,  to  such  extent  as  he  may  deem  proper,  the  exercise  bj'  him- 
self of  all  powers  and  functions  of  government.  He  may  appoint  all 
the  necessary  officers  and  clothe  them  with  designated  powers,  larger 
or  smaller,  according  to  his  pleasure,  and  he  may  prescribe  the  revenues 
to  be  paid,  and  apply  them  to  his  own  use  or  otherwise.  There  is 
no  limit  to  the  powers  that  may  be  exerted  in  such  cases,  save  those 
which  are  found  in  the  laws  and  usages  of  war,  as  settled  by  the  law  of 
nations. 

New  Orleans  /•.  Steamship  Company,  20  Wallace,  387. 

"The  first  effect  of  the  military  occupation  of  the  enemy's  territory 

is  the  severance  of  the  former  political  relations  of 

u  aan      e     up-  ^^^  inhabitants  and  the  establishment  of  a  newpolit- 
pmes.  .  .  .  ^ 

ical  power.     Under  this  changed  condition  of  things 

the  inhabitants,  so  long  as  they  perform  their  duties,  are  entitled  to 

security  in  their  persons  and  property  and  in  all  their  private  rights  and 

relations.  .  .  .  The  municipal  laws  of  the  conquered  territory,  such 

as  affect  private  rights  of  person  and  property  and  provide  for  the 

punishment  of  crime,  are  considered  as  continuing  in  force,  so  far  as 

they  are   compatible    with  the  new  order  of  things,  until  they  are 

suspended  or  superseded  by  the  occupying  belligerent;  and  in  practice 

they  are  not  usually  abrogated,  but  are  allowed  to  remain  in  force  and 

to  be   administered  by  the  ordinary  tribunals   substantially  as  they 

were  V)efore  the  occupation.''     But,  if  the  course  of  the  inhabitants 

should  render  such  measures  indispensable  to  the  maintenance  of  law 

and  order,  the  commander  in  chief  possesses  "the  power  to  replace 

or   expel   the  native  officials  in  part  or  altogether,  to  substitute  new 

courts  of  his  own  constitution  for  those  that  now  exist,  or  to  create 

such  new  or  supplementary  tribunals    as  may  be  necessary'. "     The 

military  occupant  also  collects  and  administers  the  revenues. 

President  ]\Ii'Kinley  to  the  Secretary  of  "War,  May  19,  1898,  in  relation  to  the 
occupation  of  the  Philippines,  Richardson's  Messages  and  Paj^ers  of  the 
Presidents,  X.  208. 

See,  also,  President  McKinley  to  the  Secretary  of  War,  July  13,  1898,  in  rela- 
tion to  the  occupation  of  Santiago  de  Cuba,  id.,  X.  214. 

The  powers  of  courts  established  l)v  the  military  occupant  do  not 

necessarily  terminate  with  the  cessation  of  the  war, 

Continuation  of  pow-  j^  ^^^^.j^  occupant  retains  the  sovereignty  of  the  con- 

ers  after  annexa-  jx-j.  i-i.  j*-'u  *■ 

(luered   territorv.  and  suits   pending  in  such  courts 
tion.  '-  "^  .       .         »    .   ., 

may,  on  the  organization  of  civil  government,  be  trans- 
ferred b}'  statute  to  the  new  courts  so  organized. 
Lietensdorfer  r.  Webb,  20  How.  176. 


§  21.]  MILITARY    OCCUPATION.  49 

•'I  transmit  a  copy  of  a  note  of  yesterday,  addressed  to  this  De- 
partment by  Sir  Edward  Thornton,  Her  Britannic 
Payment  of  duties  to^r-,,  ,  t  i       •    -  j.  ^      • 

,  „     ^    Maiestv  s  envoy  extraordinary  and  minister  plenipo- 
iii8urgent8;Mazat-  .      "  i'-      i  i  •      A 

Ian  case.  tentiary  accredited  to  this  Goyernment,  requesting 

that  3'ou  may  be  authorized  to  use  your  good  offices 
towards  preventing  the  exaction  by  the  ]Mexican  Goyernment  of  duties 
on  goods  imported  by  Messrs.  Kelly,  at  Mazathm,  which  duties  had 
previously  been  paid  to  insurgents  there.  You  will  take  that  course 
accordingly.  It  is  difficult  to  understand  upon  what  ground  of  equity 
or  public  law  such  duties  can  be  claimed.  The  obligation  of  obedience 
to  a  government  at  a  particular  place  in  a  country  may  be  regarded  as 
suspended,  at  least,  when  its  authorit}^  is  usurped,  and  is  due  to  the 
usurpers  if  they  choose  to  exercise  it.  To  recjuire  a  repayment  of  duties 
in  such  cases  is  tantamount  to  the  exaction  of  a  penalt}'  on  the  misfor- 
tune, if  it  may  be  so  called,  of  remaining  and  carrying  on  business  in 
a  port  where  the  authority  of  the  government  had  been  annulled.  The 
pretension  is  analogous  to  that  upon  which  vessels  have  been  captured 
and  condemned  upon  a  charge  of  violating  a  blockade  of  a  port  set  on 
foot  by  a  proclamation  only,  without  force  to  carry  it  into  effect. 

""The  principle  that  duties  once  paid-in  a  part  of  the  territoiy  of  the 
countiT  in  possession  of  an  enemy  are  not  liable  again  to  be  paid  when 
the  enem}'  is  expelled  or  withdraws,  was  solemnly  decided  by  the 
Supreme  Court  of  the  United  States  in  the  case  of  Rice,  -ith  Wheaton, 
page  246. 

"Since  the  close  of  the  civil  war  in  this  country  suits  have  been 
brought  against  importers  for  duties  on  merchandise  paid  to  insur- 
gent authorities.  Those  suits,  however,  have  been  discontinued,  that 
proceeding  probably  having  been  influenced  by  the  judgment  of  the 
Supreme  Court  adverted  to." 

Mr.  Fish,  Sec.  of  State,  to  ^Mr.  Nelson,  minister  to  ^lexico,  FeV^ruary  11,  1873, 
For.  Eel.  1873,  I.  654. 

"An  insurrectionary  movement,  under  General  Reyes,  broke  out 

_,    „  , ,  at  Bluefields  in  February  last,  and  for  a  time  exercised 

Bluefields  case.  ...  .  ^ , 

actual  control  in  the  Mosquito  Territory.     4  he  Detroit 

was  promptly  sent  thither  for  the  protection  of  American  interests. 
After  a  few  weeks  the  Reyes  government  renounced  the  conflict, 
giving  place  to  the  restored  supremacy  of  Nicaragua.  During  the 
interregnum  certain  public  dues  accruing  under  Nicaraguan  law  were 
collected  from  American  merchants  b}^  the  authorities  for  the  time 
being  in  effective  administrative  control.  Upon  the  titular  govern- 
ment regaining  power  a  second  payment  of  these  dues  was  demanded. 
Controversy  arose  touching  the  validit}'  of  the  original  pa3-ment  of  the 

H.  Doc.  551 4 


50  states:  characteristics  and  classification.       [§  21. 

debt  to  the  <le  fucto  regent  of  the  territory.  .A.n  arningement  was 
effected  in  April  last  by  the  United  States  minister  and  the  foreign 
secretary  of  Nicaragua  whereby  the  amounts  of  the  duplicate  pay- 
ments were  deposited  with  the  British  consul  pending  an  adjustment 
of  the  matter  by  direct  agreement  between  the  Governments  of  the 
United  States  and  Nicaragua.     The  controversy  is  still  unsettled." 

Pre.^ident  ^IcKinley,  Annual  Message,  Deo.  o,  1S99. 

The  facts  in  the  case  just  referred  to  and  the  ultimate  settlement  of 
it  were  as  follows: 

February  3.  1899.  General  Reyes,  who  had  lately  resigned  the  office 
of  governor  of  the  department  of  Zelaya  (the  Mosquito  Reservation), 
proclaimed  at  Bluctields  a  revolution  against  the  titular  government 
of  President  Zelaya.  He  took  and  held  undisputed  possession  of  the 
custom-house  and  other  public  buildings  and  of  all  the  agencies  of 
government,  and  from  February  3  to  February  25  he  and  his  dele- 
gates exercised  at  Bluetields  all  the  functions  of  government,  including 
the  collection  of  duties."  At  the  end  of  February  the  insurrection 
collapsed,  and  the  Nicaraguan  Government,  after  the  reestablishment 
of  its  authority  at  Blue.tields,  demanded  the  payment  to  itself,  b}-  the 
merchants,  of  the  amounts  of  duty  which  they  had  paid  to  the  insur- 
gent authorities  during  the  period  of  their  th'  facto  control.  Against 
this  demand  the  American  merchants  remonstrated.  The  Government 
of  the  United  States,  on  receiving  the  remonstrance,  stated  (1)  that 
it  would  not  support,  as  against  the  demand  of  Nicaragua,  any 
Americans,  if  such  there  were,  who  had  aided  or  abetted  the 
insurrection,  but  {'!)  that  Americans  who  had  paid  "under  duress 
of  person  or  property,  or  under  intimidations  amounting  to  coer- 
cion, are  entitled,  if  second  payments  are  demanded  by  the  Nica- 
raguan Government,  to  make  such  payments  under  protest,"  and  that 
if  any  Americans  had  made  a  second  payment  without  protest,  because 
they  were  reipiired  l)y  Nicaragua  so  to  do,  they  would  be  considered 
as  having  paid  under  protest.*  Prior  to  the  receipt  of  this  instruction, 
however.  Mr.  Merry,  the  minister  of  the  United  States,  and  the  com- 
mander of  the  U.  S.  S.  Detroit,  then  at  Bluetields,  cabled  a  suggestion 
that  second  payments  be  refused,  as  the  revolutionary  government 
certainly  was  <1r  facto,  and  such  action  was  necessary  to  the  mainte- 
nance of  American  interests  and  influence:''  and  on  April  29,  1899,  an 

"  Mr.  .Merry,  iniui.^ter  to  Nicarairua.  to  Mr.  Hay,  Secretary  of  State,  April  23,  ,1899, 
For.  Hel.  1S99,  5(39. 

''Mr.  Hay,  Secretary  of  State,  to  Mr.  Merry,  minister  to  Nicaragua,  April  17,  1899, 
For.  Rel.  1899,  hm. 

'•  For.  Rel.  1899,  569. 


§  21.]  MILITAKY    OCCUPATION.  51 

agreement  was  concluded  by  Mr.  Merry  and  ]Slr.  Sanson,  Nicaraguan 
minister  for  foreign  affairs,  under  which  it  was  arranged  that  the 
money  demanded  b}"  Nicaragua  should  be  deposited  in  the  British 
consulate  pending  the  decision  of  the  controversy.  ]\Ieanwhile  the 
Nicaraguan  authorities  were  to  raise  the  embargo  which  they  had 
previoush'  placed  on  certain  merchandise  in  order  to  compel  the  own- 
ers to  comply  with  their  demands."  This  arrangement  was  approved 
by  the  United  States,*  and  the  British  consul  accepted  the  trust.  The 
amount  in  dispute,  which  was  claimed  from  five  American  lirms,  was 
119,673.33,  Nicaraguan  currency.'' 

Subsequently  the  Department  of  State  received  the  sworn  statements 
of  the  American  merchants,  which  apparently  showed  (1)  thatthe^'  were 
not  in  any  wise  accomplices  in  the  Keyes  movement;  (2)  that  during 
the  period  of  February  3-23  the  merchants  did  not  pay  current  dues 
in  cash,  but  gave  bonds  for  them,  and  that  the  money  actualh'  paid 
was  the  amount  due  on  bonds  which  then  matured  for  duties  levied  in 
December,  1898,  and  January,  1809,  the  payments  being  made  to  the 
agent  of  the  titular  government,  who  held  the  bonds  and  who  was  con- 
tinued in  office  by  (xeneral  Reyes;  (3)  that  the  bonds  l)ore  a  penalty  of 
5  per  cent  a  month  for  nonpayment,  and  that  payment  was  demanded 
under  threat  of  suspension  of  importations;  and  (4)  that  from  Febru- 
ary 3  to  February  25  General  Keves  was  in  full  control  and  exercise  of 
all  governmental  agencies,  civil  and  military,  in  the  district.  Under 
these  circumstances  the  United  States  expressed  the  opinion  that  to 
exact  a  second  payment  would  be  "an  act  of  international  injustice," 
and  asked  the  assent  of  the  Nicaraguan  Govermnent  to  the  return  of 
the  money  b}'  the  British  consul  to  the  depositors.'' 

Subsequently  the  Nicaragaian  Government  sought  to  luring  the  mat- 
er before  its  judicial  tribunals,  and  to  require  the  merchants  to  estab- 
lish before  those  tribunals  their  "excuse''  for  their  "unwarranted 
payments.'"'  To  this  course  the  United  States  objected,  on  the  ground 
that  the  question  had  ])ecome  a  diplomatic  one.  The  two  Governments 
failed  to  agree  on  the  question  whether  the  payments  were  made  under 
compulsion  to  a  de  facto  authority,  but  the  money  was  at  length 
returned  to  the  American  merchants  with  the  assent  of  Nicaragua.'' 


«For.  Eel.  1899,  571,  576-578. 

''Mr.  Hay,  Secretary  of  State,  to  Mr.  Merry,  telegram,  May  (i,  1S99,  For.  Kel. 
1899,  579. 

'■For.  Rel.  1899,  580-581. 

''Mr.  Hay,  Secretary  of  State,  to  Mr.  >[erry,  inini.ster  to  Nicarajrua.  July  2t),  1S99, 
For.  Kel.  1900,  80:^. 

'For.  Rel.  1900,  80:5-824.  See  also  Prei^ident  McKiiiley's  annual  nies.<a<re,  I>e<'ein- 
l)er  3,  1900. 


52  states:  characteristics  and  classification.       [§22. 

(3)    THE    confederate    STATES. 

§  22. 

"It  is  very  certain  that  the  Confederate  government  was  never 

acknowledged  by  the  United  States  as  a  de  facto  gov- 

De  facto  supremacy;  ei-nment  in  this  sense  [i.  e.,  as  'a  government  de  facto 

in  the  most  absolute  sense,'  such  as  that  of  England 
tations.  ,  . 

under  the  Commonwealth,  first  bv  Parliament,  and 

afterwards  by  Cromwell  as  Protector].  Nor  was  it  acknowledged  as 
such  b}'  other  powers.  No  treaty  was  made  by  it  with  any  civilized 
state.  No  obligations  of  a  national  character  were  created  by  it,  bind- 
ing after  its  dissolution,  on  the  States  which  it  represented,  or  on  the 
national  government.  From  a  very  earl}-  period  of  the  civil  war  to 
its  close,  it  was  regarded  as  simply  the  military  representative  of  the 
insurrection  against  the  authority  of  the  United  States.     *     *     * 

'•The  central  government  established  for  the  insurgent  States  differed 
from  the  temiwrary  governments  at  Castine  and  Tampico  in  the  cir- 
cumstance that  its  authority'  did  not  originate  in  lawful  acts  of  regular 
wan  but  it  was  not,  on  that  account,  less  actual  or  less  supreme.  And 
we  think  that  it  nuist  be  classed  among  the  governments  of  which 
these  are  examples.  It  is  to  be  observed  that  the  rights  and  obliga- 
tions of  a  belligerent  were  conceded  to  it.  in  its  military  character, 
ver}'  soon  after  the  war  began,  from  motives  of  humanity  and  expe- 
diency by  the  United  States.  The  whole  territory  controlled  by  it 
was  thereafter  held  to  be  the  enemies'  territory,  and  the  inhabitants 
of  that  territory  were  held,  in  most  respects,  for  enemies.  To  the 
extent,  then,  of  actual  supremacy,  however  unlawfully  gained,  in  all 
matters  of  government  within  its  military  lines,  the  power  of  the 
insurgent  government  can  not  ))e  questioned.  That  supremac}"  did 
not  justify  acts  of  hostility  to  the  United  States.  How  far  it  should 
excuse  them  must  be  left  to  the  lawful  government  upon  the  reestab- 
lishment  of  its  authority.  But  it  made  obedience  to  its  authority,  in 
civil  and  local  matters,  not  only  a  necessity  but  a  dut}'.  Without  such 
obedience,  civil  order  was  impossible.  It  was  by  this  government, 
exercising  its  power  throughout  an  immense  territory,  that  the  Con- 
federate notes  Avere  issued  early  in  the  war,  and  these  notes  in  a  short 
time  became  almost  exclusively  the  currency  of  the  insurgent  States. 
*  *  *  They  must  be  regarded,  therefore,  as  a  currenc}*  imposed  on 
the  communit}'  by  irresistible  force.  It  seems  to  follow  as  a  necessary 
consequence  from  the  actual  supremacy  of  the  insurgent  government, 
as  a  belligerent,  within  the  territory  where  it  circulated,  and  from  the 
necessity  of  civil  obedience  on  the  part  of  all  who  remained  in  it,  that 


§  22.]  THE    CONFEDERATE    STATES.  53 

this  currency  must  be  considered  in  courts  of  law  in  the  same  light  as 
if  it  had  been  issued  b}-  a  foreign  government  temporarih'  occupying 
a  part  of  the  territory-  of  the  United  States.  Contracts  stipulating  for 
paA'ments  in  this  currency  can  not  be  regarded  for  that  reason  onh'  as 
made  in  aid  of  the  foreign  invasion  in  the  one  case,  or  of  the  domestic 
insurrection  in  the  other.  They  have  no  necessary  relations  to  the 
hostile  government,  whether  invading  or  insurgent.  The}'  are  trans- 
actions in  the  ordinary  course  of  civil  society',  and  though  they  may 
indirectly  and  remoteh'  promote  the  ends  of  the  unlawful  government, 
are  without  ])lame,  except  when  proved  to  have  been  entered  into  with 
actual  intt^nt  to  further  invasion  or  insurrection.  We  can  not  doubt 
that  such  contracts  should  be  enforced  in  the  courts  of  the  United 
States,  after  the  restoration  of  peace,  to  the  extent  of  their  just  obli- 


gations 


Thorington  c.  Smith  (1868),  8  Wall.  1,  9-11,  holding  that  a  contract  for  the 
payment  of  Confederate  States  treasury  notes,  made  during  the  civil 
war,  between  persons  residing  within  those  States,  could  be  enforced  in 
the  United  States  courts,  the  contract  having  been  made  on  a  sale  of 
property  in  the  usual  course  of  business,  and  not  for  the  purpose  of  giving 
currency  to  the  notes  or  otherwise  aiding  the  Confederate  cause. 

In  the  case  of  Hanauer  r.  Woodruff,  15  Wall.  448,  the  court,  referring  to  the 
ca.se  of  Thorington  r.  Smith,  said:  "It  would  have  been  a  cruel  and 
oppressive  judgment  if  all  the  transactions  of  the  many  millions  of  people 
composing  the  inhabitants  of  the  insurrectionary  States  for  the  several 
years  of  the  war,  had  been  held  tainted  because  of  the  use  of  this  forced 
currency  [Confederate  notes],  when  those  transactions  were  not  made 
with  reference  to  the  insurrectionary  government."  This  is  quoted  in 
Baldy  v.  Hunter,  171  U.  S.  388,  397,  from  the  opinion  of  the  court  in  the 
Confederate  Note  Case,  19  Wall.  548,  in  which  parol  evidence  was  held  to 
be  admissible  to  prove  that  the  word  "dollars"  in  a  contract  made  during 
the  civil  war  in  fact  meant  Confederate  notes. 

A  decree,  or  a  judgment,  when  rendered  upon  a  contract  payable  in  Confed- 
erate treasury  notes,  should  be  for  a  sum  equal  to  the  value  of  those  notes, 
not  in  the  gold  c<jin,  but  in  the  legal  tender  currency  of  tlie  United  States 
at  the  time  when  and  j)lace  where  they  were  payable.  (Bissell  r.  Hey- 
wanl,  96  U.  S.  580. ) 

"In  Delmas  r.  Insurance  Co.,  14  Wall.  661,  665,  upon  writ  of  error  to  the 
supreme  court  of  Jjouisiana,  one  of  the  questions  presented  was  whether  a 
judgment,  which  was  otherwise  conceded  to  be  a  valid  prior  lien  for  the 
party  in  whose  favor  it  was  rendered,  was  void  because  the  consideration 
of  the  contract  on  which  the  judgment  was  rendered  was  Confederate 
money.  This  court  said:  'This  court  has  decided,  in  the  case  of  Thor- 
ington V.  Smith,  8  Wall.  1,  that  a  contract  was  not  void  because  payable 
in  Confederate  money,  and  notwithstanding  the  apparent  division  of 
opinion  on  this  question  in  the  case  of  Hanauer  v.  AVoodruff,  10  Wall.  482, 
we  are  of  the  opinion  that  on  the  general  principle  announced  in  Thor- 
ington r.  Smith,  the  notes  of  the  Confederacy  actually  circulating  a,s 
money  at  the  time  the  contract  was  made  may  constitute  a  valid  con- 
sideration for  such  contract.'  So,  in  Planters'  Bank  v.  Union  Bank,  16 
Wall.  483,  499,  it  was  a  question  whether  Confederate  treasury  notes  had 
and  received  by  defendants  for  the  use  of  the  plaintiffs  were  a  sufficient 


54  states:  characteristics  and  classification.       [§  '^^^ 

consideration  for  a  i)ronii.se,  ex])n'sst'(l  or  implied,  to  ])ay  anythinj:,  anil 
it  was  lu'ld  u)ion  the  authority  of  Thorin^rton  r.  Smith,  above  cited,  that 
'a  promise  to  j)ay  in  Confederate  notes,  in  consideration  of  the  receipt  of 
such  notes  and  of  drafts  payal)le  by  tliem,  can  not  l)e  considered  a  vxdum 
partinn  or  an  ille<ral  contract.'"  (Baldy  r.  Hunter  (bH98),  171  V.  S.  388, 
S95. ) 

"•  Wo  admit  that  tho  ac-ts  of  tho  sovt>ral  Stat(»s  in  tluni'  individual 

rapacitios,  and  of  thoir  ditiVrent  dopartments  of  g"ov- 
Confederate    and  ,  ^.  .     ,.    .    ,  i    i       •   i    i.-  i       • 

ornniont.  ('X(H'iitiV(\  luduMal.  and  lotjfi.slativo.  durintjf 
State  governments.  ••  .  .    "     .  " 

the  war,  so  far  as  tlu\v  did  not  impair  or  tend  to 
impair  tho  siipriMnacy  of  tlu'  national  authority,  or  tho  just  rights  of 
citizens  undoi'  th(^  Constitution,  are.  in  ovneral,  to  ho  troated  as  valid 
and  binding'.  Tho  oxistonco  of  a  state  of  insurrt^ction  and  war  did  not 
loosen  the  bonds  of  society,  or  do  away  Avith  civil  government,  or  the 
regidar  administration  of  tii(>  laws.  Order  Avas  to  ))e  preserved,  police 
regulations  maintained,  crime  prosecuted,  property  protected,  con- 
tracts enforced,  niarriages  cohdjratiHl,  estates  settled,  and  the  transfer 
and  descent  of  property  regulated  precisely  as  in  time  of  peace.  No 
one  that  Ave  are  aware  of  seriously  (juestions  the  validity  of  judicial  or 
legislative  acts  in  the  insurrtM-tionary  States  touching  these  and  kin- 
dred subjects,  where  th(\v  were  not  hostile  !n  tJieir  jhii'jkis<'  or  mode 
of  enforciMuent  to  the  authority  of  tlu^  National  (lovernment,  and  did 
not  impair  the  rights  of  citizens  under  the  Constitution." 

Horn  r.  l.ockhart,  17  Wall.  r>70,  oSO. 

In  tills  ca.se  (Ib)rn  r.  Lockhart ).  which  was  a  suit  a<rainst  an  executor  ior  an 
accounting  as  to  funds  in  his  hands,  a  question  \va.s  raised  a.s  to  whether 
the  defendant  was  entitle(l  to  credit  for  a  certain  sum  in  Confederate  notes 
which,  in  ^hirch,  lSti4,  he  invcsti'd,  under  the  laws  of  Alal>ama,  in  Con- 
federate l)onds.  His  accotmts  were  approved  by  the  jiroper  jjrobate  court 
in  that  State,  credit  bein<r  ,<;iven  for  the  investment  in  question.  The 
Supreme  Court  held  that  this  credit  coulil  not  be  allowed,  .<aying:  "The 
valiflity  of  tiie  action  of  the  ])robate  court  of  Alabama  in  the  present  case 
in  tlie  settlement  of  the  accounts  of  tlu'  exi-cutor  we  do  not  (juestion, 
except  so  far  as  it  ajiprovt's  the  investment  of  funds  received  by  him  in 
Confederate  bonds,  and  directs  payment  to  the  le<ratei's  of  their  distribu- 
.  five  shares  in  those  bonds.  Its  action  in  this  resjiect  was  an  absolute  nul- 
lity, and  can  afford  no  pi-ote<'tioii  to  the  executor  in  the  courts  of  the 
I'nited  States."  Thn-e  of  the  justices  dissi'uted.  See,  also,  Baldy  v. 
Hunter  (1898),  171  V.  S.  :5SS.  .•59r>-:!it7.  infra. 

"Iieferrin<r  to  the  jrovernment  established  in  18()2  in  Texas  in  hostility  to  the 
Cnited  States,  and  whicli  at  that  time  was  in  the  exercise  of  the  ordinary 
functions  of  administration,  this  court,  in  Texas  r.  White,  7  Wall.  700,  773, 
said:  'Ft  is  not  necessary  to  attt-nq)t  any  exact  definitions  within  which 
the  acts  of  such  a  State  govermneiit  must  be  treated  as  valid,  or  invalid. 
It  may  be  sai<I.  j-erhaps,  with  suiiicient  accuracy,  that  acts  necessary  to 
jX'ace  and  jrood  onler  anion;^  citizens,  such,  for  examj)le,  as  ac-ts  sanction- 
ing and  protecting  marriage  and  the  domi-stic  relations,  governing  the 
course  of  descents,  regulating  the  conveyance  and  transfer  of  property, 
real  and  personal,  and  ])rovidin'_'  remedies  for  injuries  to  i)erson  and 
estate,  and  other  similar  acts,  wliich  would  Im-  valid  if  emanating  fnjm  a 


§  22.]  THE    CONFEDERATE    STATES.  55 

lawful  government,  must  l>e  regarded  in  general  as  valid  when  proceeding 
from  an  actual,  though  unlawful  government;  and  that  acts  in  furtherance 
or  support  of  rel)ellion  against  the  T'nited  States,  or  intended  to  defeat 
the  just  rights  of  citizens,  and  other  acts  of  like  nature,  must,  in  general, 
be  regarded  as  invalid  and  void.'"  (Baldy  '•.  Hunter  (1898),  171  U.  S. 
388,  392. ) 

•'Whether  the  temporary  government  of  the  Confederate  States 

had  the  capacitv  to  take  and  hold  title  to  real  or  per- 
Capacity  to  take  and  ,  ^     '       j  i  <•        -i  •      ^      i  •       i 

,  ,,  ,        sonal  property,  and  how  tar  it  is  to  he  recogfnized  as 

nold  property.  .  ,    . 

having  been  a  de  facto  government,  and  if  so,  what 

consequences  follow  in  regard  to  its  transactions  as  they  are  to  be 
viewed  in  a  court  of  the  United  States,  it  will  be  time  enough  for  us 
to  decide  when  such  decision  becomes  necessary.  There  is  no  such 
necessity  in  the  present  case." 

stiller,  J.,  delivering  the  opinion  of  the  court,  Sprott  r.  United  States,  20 
AVall.  459  (187-1).  Mr.  Justice  Field,  who  delivered  a  dissenting  opinion 
in  the  ca.se,  maintained  that  the  Confederate  government  had,  as  a  de  facto 
government,  "  the  same  right  within  its  territorial  limits  to  acquire  and  to 
dispose  of  movable  personal  property  which  a  g(jvernment  de  jure  pos- 
sesses." In  support  of  this  proposition,  he  cited  3Iauran  r.  Insurance 
Company,  6  Wall.  14;  Thorington  r.  Smith,  8  Wall.  10;  United  States  v. 
McRae,  8  Law  Reports,  Equity,  69;  United  States  c.  Prioleau,  2  Hemming 
&  Miller's  Chancery  Cases,  559. 

"The  recognition  of  the  existence  and  the  validity  of  the  acts  of  the 
.so-called  Confederate  government,  and  that  of  the  States  which  yielded 
a  temporary  support  to  that  government,  stand  on  very  different 
grounds,  and  are  governed  by  very  different  considerations.  The  lat- 
ter, in  most  if  not  in  all  instances,  merely  transferred  the  existing 
State  organizations  to  the  support  of  a  new  and  different  national 
head.  The  same  constitutions,  the  same  laws  for  the  protection  of 
l)roperty  and  personal  rights  remained,  and  were  administered  ])V  the 
same  otHcers.  *  *  *  Jt  \^  onh'  when  in  the  use  of  these  powers 
substantial  aid  and  comfort  was  given  or  intended  to  be  given  to  the 
rebellion,  when  the  functions  necessarily  reposed  in  the  State  for  the 
maintenance  of  civil  society  were  perverted  to  the  manifest  and  inten- 
tional aid  of  treason  against  the  Government  of  the  I'nion.  that  their 
acts  are  void. 

"The  government  of  the  Confederate  States  can  receive  no  aid  from 
this  course  of  reasoning.  It  had  no  existence  except  as  a  conspiracy 
to  overthrow  lawful  authority.  Its  foundation  was  treason  against 
the  existing  Federal  Government.  Its  single  purpose,  so  long  as  it 
lasted,  was  to  make  that  treason  successful.  *  *  *  When  it  was 
overthrown  it  perished  totally.  It  left  no  laws,  no  statutes,  no  decrees, 
no  authority  which  can  give  support  to  any  contract,  or  any  act  done 
in  its  service,  or  in  aid  of  its  purpose,  or  which  conti-i])uted  to  protract 
its  existence.     So  far  as  the  actual  exercise  of  its  physical  power  was 


56  states:  characteristics  and  classification".       [§  22. 

))r()utiht  to  l)oar  upon  individuals,  that  may,  under  some  circumstances, 
constitute  a  justitication  or  excuse  for  acts  otherwise  indefensible;  but 
no  validity  can  be  given  in  the  courts  of  this  country  to  acts  voluntarily 
performed  in  direct  aid  and  support  of  its  unlawful  purpose." 

Mr.  Justice  ^lillor,  deliverino;  tlio  opinion  of  the  court,  Sprott  v.  United  States, 
20  Wall.  459,  464  (1874).  Tlie  point  det-ided  in  thi^  case  was  that  a  resi- 
dent of  Mississipj)i,  who  jmrchased  from  the  Confederate  government  a 
quantity  of  cotton  which  was  seized  by  the  United  States  near  the  close 
of  the  civil  war,  could  not  maintain  a  claim  luider  the  Captured  and 
Abandtmed  Property  Act  of  :\rarch  12,  1863,  12  Stats,  at  L.  820,  which 
shut  out  persons  who  had  given  any  "aid  or  comfort  to  the  rebellion." 
]Messrs.  Clifford  and  Davis,  justices,  concurred  in  the  judgment  of  the 
court  "solely  upon  the  ground  that  the  purchase  of  the  cotton  and  the 
payment  of  the  consideration  necessarily  tended  to  give  aid  to  the  rebel- 
lion, and  that  all  such  contracts  were  void,  as  contrary  to  jniblic  policy;" 
and  they  stated  that  "they  dissented  from  the  residue  of  the  opinion  as 
unnecessary  to  the  conclusion."  Mr.  Justice  Field  dissented  from  the 
judgment  of  the  court,  on  the  ground  that  the  Confederate  government 
was  a  de  facto  government  capable  of  taxing  and  conveying  title  to 
movable  i)roperty,  and  that,  so  far  as  the  question  of  aid  and  comfort  was 
c(:)ncerned,  any  disability  of  the  claimant  in  that  regard  was  removed  by 
the  President's  i>roclamation  of  jjardon  and  amnesty  of  December  25,  1868. 

The  same  distinction  between  the  acts  of  the  Confederate  government  and  the 
acts  of  the  several  States  that  yielded  it  support  is  ex])ressed  in  Williams 
v.  Bruffy  (1877),  9(5  U.  S.  176,  191-192. 

All  that  was  meant  by  the  statement,  in  Thoring'ton  v.   Smith,  8 

Wall.  ].  that  the  supremacy  of  the  Confederate  gov- 
Sequestration       and  i    a        j         ij-  .i.      -^  j^i       '^      •         •    'i 

^     ^.        ^       ernment      made  obedience  to  its  authoritv  in  civil 
confiscation  acts.  i    i        i  i  •  " 

and  local  matters  not  only  a  necessity,  but  a  duty," 

was  that  "'as  the  actual  supremacy  of  the  Conf(>derate  government 
existed  over  c(>i-tain  territory,  individual  resistance  to  its  authority 
then  would  have  been  futile,  and  therefore  unjustitiable.  In  the  face' 
of  an  ov<u-whelming  force,  obedience  in  such  matters  maj'  often  be  a 
necessity,  and.  in  the  interests  of  order,  a  duty.  No  concession  is 
thus  made  to  thc^  rightfubiess  of  the  authority  exercised."  Hence  the 
.sequestration  and  contiscation,  though  enforced  by  judicial  process, 
under  the  act  of  the  Confederate  congress  of  Aug.  80,  1861,  of  a  debt 
due  by  a  citizen  of  Virginia  to  a  citizen  of  Pennsylvania,  is  no  answer 
to  an  action  against  the  debtor,  at  the  suit  of  the  creditor,  after  the 
war,  for  the  recovery  of  the  debt. 

Williams  >:  Bruffy,  96  U.  S.  176  (1877). 

In  April,  1862,  certain  shares  of  .stock  held  bv  loyal  citizens  of  the 
United  States  in  a  corporation  in  Charleston,  S.  C,  were  sequestrated 
and  .sold,  under  ti  .statute  of  the  Confederate  congress,  as  the  property 
of  "alien  enemies,*"' and  new  certiticates  of  .stock  were  issued  to  the 
purchasers.     In  February,  1865,  the  United  States  forces  occupied 


§  22.]  THE    CONFEDERATE    STATES.  57 

Charleston  and  seized  all  the  property  and  effects  of  the  corporation, 
but  in  May,  1866,  i-estored  them  on  the  corporation's  replacing  on  its 
books  the  names  of  the  purchasers  of  the  sequestrated  stock  and  their 
assignees  with  the  names  of  the  original  holders  and  paying  to  the 
latter  the  amount  of  dividends  declared  since  the  beginning  of  the  war. 
Held  (1)  that  the  new  certificates  gave  no  title  either  to  the  pui'chasers 
or  their  assignees,  and  should  be  cancelled,  and  (2)  that  the  purchasers 
and  their  assignees  could  claim  no  indemnity  from  th(^  company. 
"Nothing  is  better  settled,"  said  the  court,  '"in  the  jurisprudence  of 
this  court  than  that  all  acts  done  in  aid  of  the  rel^ellion  were  illegal 
and  of  no  validity.  The  principle  has  become  axiomatic.  It  would 
be  a  mere  waste  of  time  to  linger  upon  the  point  for  the  purpose  of 
discussing  it.  Texas  v.  White^  7  ^Yall.  TOO;  TUckiaan  v.  JoneH^  9  Id. 
197;  Hanauer  v.  Doane,  12  Id.  312;  Knox  v.  Lee^  Id.  457;  Ilanauer 
v.  Woodriff,  15  Id.  -439;  Comet  v.  ^Villmms,  20  Id.  226;  Sprott  v. 
United  States^  Id.  459. 

"The  transactions  here  in  question  were  clearly  within  the  category 
thus  denounced.  The  order  of  sequestration,  the  sale,  the  transfer, 
and  the  new  certificates  were  all  utterly  void.  They  gave  no  rights  to 
the  purchasers,  and  took  none  from  the  loyal  owners.  In  the  view  of 
the  law,  the  rightful  relations  of  both  to  the  property  were  just  the 
same  afterwards  that  they  had  been  before.  The  purchasers  had  not 
then,  and  they  have  not  now,  a  scintilla  of  title  to  the  stock. 

"The  transferees  can  be  no  better  off  than  their  vendors." 

Dewing  r.  Perdicaries,  96  U.  S.  193,  195  (1877). 

From  the  numerous  decisions  of  the  Supreme  Court,  beginning  with 
the  Prize  Cases^  2  Black.  635,  and  ending  with  Wil- 

ummaryo  ju  icia  ^^Y/;//,s.  y.  BruiFv,  96  IT.  S.  176,  and  Devyinq  v.  Perdl- 
decisions.  ,  m  ^^^  '  _   _  ^ 

earit'^i^  Id.  193,  the  following  propositions  are  plainly 

to  be  deduced: 

"  1.  The  district  of  countr}-  declared  by  the  constituted  authorities, 
during  the  late  civil  war,  to  be  in  insurrection  against  the  Govern- 
nient  of  the  United  States,  was  enemy  territory,  and  all  the  people 
residing  within  such  district  were,  according  to  public  law,  and  for  all 
purposes  connected  with  the  prosecution  of  the  war,  liable  to  be  treated 
))y  the  United  States,  pending  the  war  and  while  they  remained  within 
the  lines  of  the  insurrection,  as  enemies,  without  reference  to  their 
personal  sentiments  and  dispositions. 

"2.  There  was  no  legislation  of  the  Confederate  congress  which 
this  court  can  recognize  as  having  any  validit}'  against  the  United 
States,  or  against  any  of  its  citizens  who,  pending  the  war.  i-esided 
outside  of  the  declared  limits  of  the  insurrection. 

"  3.  The  Confederate  government  is  to  be  regarded  \)X  the  courts  as 
simply  the  military  representative  of  the  insurrection  against  the 
authority  of  the  United  States. 


58  states:  charactp:ristics  and  classification.       [§22. 

"4.  To  the  Confodonite  army  was.  houevor.  conceded,  in  the  inter- 
est of  humanity,  and  to  prevent  the  cruelties  of  reprisals  and  retalia- 
tion, such  belligerent  rights  as  Ixdong-ed  under  the  laws  of  nations  to 
the  armies  of  independent  governments  engaged  in  war  against  each 
other;  that  concession  placing  the  soldiers  and  officers  of  the  rebel 
army,  as  to  all  matters  directly  comic^cted  with  the  mode  of  prose- 
cuting tile  war.  *  on  the  footing  of  those  engaged  in  lawful  war,"  and 
exemi)ting  'them  from  liability  for  acts  of  legitimate  warfare,'" 

Kurd  r.  Surget  (1S7S),  97  l'.  S.  594,  (kl4,  lioldiiij,'  that  a  statute  of  the  Con- 
federate i-uii_<rres>^  eonld  have,  as  an  art  of  legislation,  no  force  whatever 
in  any  court  recognizing  the  Federal  Constitution  as  the  supreme  law 
uf  the  land. 

"From  these  cases  it  may  be  deduced — 

"That  the  transactions  between  persons  actuallv  residing  within 
the  tiM-ritory  dominated  l)y  the  government  of  the  Confederate  States 
were  not  invalid  for  the  reason  only  that  they  occurred  under  the 
sanction  of  the  laws  of  that  government  or  of  any  local  government 
recognizing  its  authority; 

"That,  within  such  territory,  the  preservation  of  order,  the  main- 
tenance of  police  regidations.  the  prosecution  of  crimes,  the  protection 
of  property,  the  enforcement  of  contracts,  the  celebration  of  mar- 
riages, the  settlement  of  estates,  the  transfer  and  descent  of  propert}^, 
and  similar  or  kindred  subjects,  were,  during  the  war,  under  the  con- 
trol of  the  local  governments  constituting  the  so-called  Confederate 
States; 

''That  what  occurred  or  was  done  in  respect  of  such  matters  under 
the  authority  of  the  laws  of  these  local  (h-  facto  governments  should 
not  be  disregarded  or  held  to  be  invalid  mei'ily  because  those  gov- 
ernments wen^  organized  in  hostility  to  the  Union  established  by  the 
national  Constitution;  this,  because  the  existence  of  war  between  the 
United  States  and  the  Confederate  States  did  not  relieve  those  who 
were  within  the  insurrectionary  lines  from  the  necessity  of  civil  o])e- 
dience.  nor  destroy  the  bonds  of  society,  nor  do  away  with  civil  gov- 
ernment or  the  regular  administration  of  the  laws,  and  because 
transactions  in  the  ordinary  cours(»  of  civil  society  as  organized  within 
th(^  enemy's  territory,  although  they  may  have  indirectly  or  remotely 
promoted  the  ends  of  the  (h-  fdcto  or  uidawfid  government  organized 
to  etl'ect  a  dissolution  of  the  Union,  were  without  blame  'except  when 
proved  to  have  be<'n  eiitered  into  n-ifh  artiKil  Intent  to  further  inva- 
sion or  insurrection:'  and. 

''That  judicial  and  legislative  acts  in  the  respective  States  compos- 
ing the  so-called  Confederate  States  should  be  I'espectt'd  by  the  courts 
if  they  were  not  'hostile  in  tln/r  jmrpofo  or  mode  of  enforcement  to 
the  authority  of  the  National  (lovenuncnt.  and  did  not  impair  the 
rights  of  citizens  under  the  Constitution.' 


§  22.]  THE    CONFEDERATE    STATES.  59 

"Applying  these  principles  to  the  ease  before  us.  we  are  of  opinion 
that  the  mere  investment  by  Hunter,  as  ouardian.  of  the  Confederate 
funds  or  currency  of  his  ward  in  bonds  of  the  Confederate  States 
should  be  deemed  a  transaction  in  the  ordinary  course  of  civil  societj^, 
and  not,  necessarily,  one  conceived  and  completed  with  an  actual  intent 
thereby  to  aid  in  the  destruction  of  the  Government  of  the  Union. 
If  contracts  })etween  parties  resident  within  the  lines  of  the  insurrec- 
tionary States,  stipulating  for  payment  in  Confederate  notes  issued  in 
furtherance  of  the  scheme  to  overturn  the  authority  of  the  United 
States  within  the  territory  dominated  by  the  Confederate  States,  were 
not  to  be  regarded,  for  that  reason  only,  as  invalid,  it  is  difficult  to 
perceive  wh}'  a  different  principle  should  be  applied  to  the  investment 
by  a  guardian  of  his  wards'  Confederate  notes  or  currency  in  Con 
federate  Ijonds — both  guardian  and  ward  residing  at  that  time,  as  they 
did  from  the  commencement  of  the  civil  war.  within  the  Confederate 
lines  and  under  subjection  to  the  Confederate  States. 

"'As  to  the  question  of  the  intent  with  which  this  investment  was 
made,  all  douV)t  is  removed  l)v  the  agreement  of  the  parties  at  the  trial 
that  the  investment  was  hmd  fide^  and  that  the  onh'  question  made 
was  as  to  its  legality.  We  interpret  this  agreement  as  meaning  that 
the  guardian  had  in  view  only  the  best  tinancial  interests  of  the  ward 
in  the  situation  in  which  both  were  placed,  and  tliat  he  was  not  moved 
to  make  the  investment  with  the  purpose  in  any  way  to  obstruct  the 
United  States  in  its  efforts  to  suppress  armed  rebellion.  We  are 
unwilling  to  hold  that  the  mere  investment  in  Confederate  States 
bonds — no  actual  intent  to  impair  the  rights  of  the  United  States 
appearing — was  illegal  as  l)etween  the  guardian  and  ward.'' 

Bakly  /•.  Hunter  (1898),  171  U.  S.  388,  400. 

it  appeared  in  this^  ease  that  the  defendant  wa.s  appointed  guardian  of  the 
plaintiff,  in  Geoi'gia,  in  1857.  Tlie  inve.stment  of  the  latter's  Confederate 
money  in  Confederate  b(jnd.s  was  made  in  (Jeorgia  in  ISfi.'i,  under  leave  of 
a  local  eourt,  granted  in  pursuance  f)f  the  act  of  the  Georgia  legislature  of 
Dec.  IH,  18(51,  by  which  guardians  were  authorized  to  invest  the  funds 
liehl  by  them  in  Confe<lerate  bonds.  In  Lamar  r.  Micou,  112  V .  S.  542, 
the  investment  of  award's  funds  in  Confederate  bonds  was  held  to  l>e 
illegal.  The  court,  in  Baldy  r.  Hunter,  distinguished  that  ca.'-e  from  the 
one  before  them,  as  follows: -"Lamar  v.  Micou  was  a  case  in  which  the 
guardian,  becinning  such  under  the  laws  of  New  York,  in  violation  of  his 
duty  to  the  country,  and  after  tlie  war  became  flagrant,  vohmtarily  went 
into  the  Confederate  lines,  and  there  gave  aid  andconifort  to  the  rebellion; 
and  yet  he  asked  that  the  investment  of  his  ward's  money  in  Confederate 
State  bonds  receive  the  sanction  of  the  courts  sitting  in  the  State  under 
the  authority  of  whose  laws  he  became  and  acted  as  guardian.  Be.«ides, 
it  is  distinctly  stated  in  the  opinion  in  that  case  that  the  sums  which 
Lamar  u.^ed  in  the  purchase  of  bonds  of  the  Ccjnfederate  States  were 
moneys  of  the  ward  in  his  hands  'arising  either  from  dividends  which 
he  ha<l  received  in  their  liehalf  or  from  interest  with  which  he  charged 
himself  upon  sums  not  invested,'  112  T'.  S.  47«>,  wliich  is  a  very  different 


60  states:  characteristics  and  classification.       [§  23. 

thing  from  reinvesting  (as  in  the  present  case)  in  Confederate  currency 
[.s/V]  moneys  previously  received  in  the  Hke  kind  of  currency.  The  p»'es- 
ent  case  is  governed  l)y  considerations  that  do  not  apply  to  that  case.  We 
do  not  douljt  the  correctness  of  the  decision  in  Lamar  v.  Micou  upon  its 
facts  as  set  out  in  the  report." 

By  section  4,  Art.  XIV.,  of  the  amendments  to  the  Constitution  of 

the  United  States  it  is  provided  that  ''neither  the 
Confederate   debts  j^    .,     i    o,    ,  ci.   j.        i     ii 

,   ^,.    ^.  L  nited  States  nor  any  State  shall  assume  or  pay  any 

and  obligations.  ,    '  .  r-  y        »' 

del)t  or  obligation  incurred  in  aid  of  insurrection  or 
rebellion  aofainst  the  United  States,  or  an}-  claim  for  the  loss  or  eman- 
cipation of  any  slave;  but  all  such  debts,  o])ligations,  and  claims  shall 
be  held  illegal  and  void." 

It  was  held  by  the  mixed  commission  under  Arts.  XII.-XVII.  of 
the  treaty  between  the  United  States  and  Great  Britain,  signed  at 
Washington.  May  8,  1871,  that  the  United  States  was  not  internation- 
all}-  liable  for  the  debts  of  the  Confederacv."  or  for  the  acts  of  the 
Confederate  forces. '' 

The  .same  principle  of  non-liability  was  enforced  by  the  mixed  com- 
mission under  the  treaty  between  the  United  States  and  Mexico  of 
July  -1.  1808,  in  respect  not  only  of  the  acts  of  the  Confederacy,  but 
also  of  acts  of  the  Zuloaga,  Miramon,  and  Maximilian  governments 
in  Mexico.'" 

V.     RIGHTS  A  XT)  DUTIES  OF  STATES. 

1.    FrXDAMEXTAL    RiGHTS    AND    Dl'TIES. 

§23. 

'•The  ultimate  foundation  of  international  law  is  an  assumption  that 

states  possess  rights  and  are  subject  to  duties  corre- 

summary.  ^p(^,^(^j,^^^^  ^^^  ^]^^  facts  of  their  po.stulated  nature.     In 

virtue  of  this  assumption  it  is  held  that  since  states  exist,  and  are 
independent  beings,  possessing  property,  they  have  the  right  to  do 
whatever  is  necessary  for  the  purpose  of  continuing  and  developing 
their  existence,  of  giving  etJ'ect  to  and  preserving  their  independence, 
and  of  holding  and  acquiring  i)roperty.  subject  to  the  qualification  that 
they  are  bound  correlativ(»lv  to  respect  these  rights  in  others.  It  is  also 
considered  that  their  moral  nature  imposes  upon  them  the  duties  of 
good  faith,  of  concession  of  redress  for  wrongs,  of  regard  for  the  per- 
.sonal  dignity  of  their  fellows,  and  to  a  certain  extent  sociabilit}'. 

"  Under  the  conditions  of  state  life,  the  right  to  continue  and  develop 
existence  gives  to  a  state  the  rights: 


"Moore,  Int.  Arbitrations,  I.  BS4,  <j5»5;  III.  2900-290. 

''Id.,  III.  2982-2987. 

<-Id.,  III.  288tJ-2900,  2873-2886,  2902-2938. 


§  23.]  EIGHTS    AND    DUTIES    OF   STATES.  61 

"1.  To  organize  itself  in  such  manner  as  it  may  choose. 

"2.  To  do  within  its  dominions  whatever  acts  it  ma\'  think  calcu- 
lated to  render  it  prosperous  and  strong. 

"3.  To  occup3'  unappropriated  territory,  and  to  incorporate  new 
provinces  with  the  free  consent  of  the  inhabitants,  provided  that  the 
rights  of  another  state  over  any  such  province  are  not  violated  by  its 
incorporation. " 

Hall,  Int.  Law,  4th  ed.,  46-47. 

Wheaton  Elements,  Part  II,  Chapters  i.  and  ii. 

A.  was  indicted  under  sections  3  and  6  of  the  act  of  Congress  of 
May  16,  1881,  21  Stats,  at  L.  22,  -'to  prevent  and 

equiremen  o      ne  pm^j^^j^   counterfeiting  within   the  United  States  of 
dihgence.'  '■  ®  .  .  .    „        . 

notes,  bonds,  and  other  securities  ot  foreign  govern- 
ments," (1)  for  having  in  his  control  and  custody  a  plate  for  counter- 
feiting notes  of  El  Banco  del  Estado  de  Bolivar,  a  bank  authorized  by 
the  laws  of  the  State  of  Bolivar,  United  States  of  Colombia;  (2)  for 
having  caused  and  procured  the  plate  to  be  made,  and  (3)  for  causing  a 
note  of  the  bank  in  question  to  be  falsely  made.  The  statute  under 
which  the  indictment  was  found  was  attacked  on  constitutional  grounds. 
Held,  (1)  that  by  the  Constitution  of  the  United  States  all  official  inter- 
course between  a  State  and  foreign  nations  is  prevented  and  exclusive 
authority  for  that  purpose  given  to  the  United  States;  (2)  that  the 
National  Government  is  thus ' '  made  responsible  to  foreign  nations  for  all 
violations  by  the  United  States  of  their  international  obligations,"  and 
that  for  this  reason  Congress  was  expressly  authorized  "to  define  and 
punish  *  *  *  offenses  against  the  law  of  nations  "  (Article  I. ,  sec.  8, 
cl.  10);  (3)  that  the  law  of  nations  requires  every  national  government 
to  use  "due  diligence"  to  prevent  the  commission  within  its  dominions 
of  a  wrong  to  another  nation  or  its  people;  (1)  that  because  of  this 
obligation  it  is  the  duty  of  one  nation  to  punish  those  who  within  its 
jurisdiction  counterfeit  the  money  of  another  nation  (Vattel,  Law  of 
Nations,  Phila.  ed.  1876,  Bk.  I.,  ch.  x,  pp.  46,17);  (5)  that  this  protec- 
tion is  due  to  foreign  securities,  whether  national  or  corporate,  Avhich 
have  been  put  out  under  the  sanction  of  public  authority  at  home,  and 
especially  to  bank  notes  and  bank  bills  issued  under  the  authority  of 
law  and  forming  part  of  the  circulating  medium  of  exchange,  or 
money,  of  a  countiy;  (6)  that  the  statute  in  question,  having  been 
passed  for  the  protection  of  an  international  interest  and  the  per- 
formance of  an  international  duty,  was  properly  to  be  considered  as 
an  act  to  define  and  punish  an  offense  against  the  law  of  nations,  and 
that,  this  being  so,  no  objection  could  be  made  to  the  statute  on  the 
ground  that  it  did  not  expressly  declare  the  offense  defined  by  it  to  be 
an  offense  against  the  law  of  nations. 

United  States  v.  Arjona  (1887),  120  U.  S.  479. 


62  states;  characteristics  and  classification.       [§  24. 

2.   EulALITY. 

§24. 

*'  No  principle  of  general  law  is  more  univer.sall\-  acknowledged  than 
the  perfect  equality  of  nations.  Russia  and  Geneva  have  equal  rights. 
It  results  from  this  equality  that  no  one  can  rightfully  impose  a  rule 
on  another.  P^ach  legislates  for  itself,  but  its  legislation  can  operate 
on  itself  alone." 

Marshall  C.  J.,  The  Antelope  (1825).  10  Wheat.  66.  122. 

'•'Nations.'  says  Vattel.  'composed  of  men.  and  considered  as  so 
many  free  persons  living  together  in  the  state  of  nature,  are  naturalh" 
equal,  and  inherit  from  nature  the  same  ol)lig-ations  and  rights.  Power 
or  weakness  does  not  in  this  respect  produce  any  difference.  A  dwarf 
is  as  much  a  man  us  a  giant:  a  small  republic  is  no  less  a  sovereign 
state  than  the  most  powerful  kingdom."  In  other  words,  all  sover- 
eign states,  without  respect  to  their  relative  power,  are.  in  the  eye  of 
international  law.  equal,  being  endowed  with  the  same  natural  rights, 
bound  by  the  same  duties,  and  sul)ject  to  the  same  obligations.  "One 
of  the  fundamental  principles  of  public  law.  generally  recognized,' 
says  Sir  William  Scott.  *is  the  perfect  equality  and  independence  of 
all  distinct  states."  Relative  magnitude  creates  no  distinction  of  right; 
relative  imbecility,  whether  permanent  t)r  casual,  gives  no  additional 
right  to  the  more  powerful  neighbor,  and  any  advantage  seized  on  that 
ground  is  mere  usurpation.  This  is  the  great  foundation  of  public 
law,  which  it  mainly  concerns  the  peace  of  mankind,  both  in  their 
political  and  private  capacities,  to  preserve  inviolate. 

•"A  necessary  consequence  of  this  e([uality  of  sovereign  states  is 
the  general  rule  of  puI)Hc  law.  that  'whatever  is  lawful  for  one  nation 
is  ecjually  lawfid  for  any  otiier;  and  whatever  is  unjustitiable  in  the 
one  is  equally  so  in  the  other."  Vattel.  in  discussing  the  sovereignty 
and  indejXMidence  of  states,  says  that  the  effect  of  such  a  ■status  'is  to 
produce,  at  hnist  externally  and  among  men.  a  perfect  equality  of 
rights  between  nations  in  the  administration  of  their  affairs  and  the 
pursuit  of  their  pretensions,  without  regard  to  the  intrinsic  justice  of 
their  conduct,  of  whicii  others  have  no  right  to  form  a  deffnite  judg- 
ment: s()  that  what  is  permitted  in  one  is  also  permitted  in  the  other, 
and  they -ought  to  )>e  considered,  in  hiunan  society,  as  having  equal 
rights." '■ 

IhilK-ck,  Int.  Law  i  liakers  vi\..  ]s!t:;).  I.  116.  citinir  Vattel.  Droit  des  Gens, 
Pn'lini.  §j  is.  L'l:  Le  Louis.  2  I)o.ls.>n.  24.;:  The  Antelope.  10  Wheat.  120. 
.*^'e,  Kivier.  Prin(ii>es  .hi  Droit  .its  (icns.  I.  12.!:  Wheaton,  Element.*, 
Part  L,  Chai..  iii;  IN-jM.rt  of  Mr.  P.ayar.l.  Sec.  of  State  .Ian.  20,  1887,  on 
Pelletier  ca.-e,  S.  Ex.  Doe.  t;4.  4it  Conj:..  2  sess. 

In  matters  of  ceremonial,  certain  distinctions  are  rec<^gnize<l.  To  "empires, 
kin<:<loiiis.  larjre  repuhlics,  and  f,'nuid  .hichies"  there  are  accorded  certain 
siirns  of  superiority,  c.immonly  called  "royal  honors."  Such  states  may 
V>e  represente<l  hy  diplomatic  ajrents  of  the  first  clas.s,  namely,  ambassa- 


§  25.]  RIGHTS    AND    DUTIES    OF    STATES.  68 

don-.  Royal  honors  do  not  ]>elorig  to  "duchies,  principalities,  counties, 
or  to  ordinary  republics."  In  matters  of  ceremonial,  the  Holy  See  has 
precedence  of  all  states.  (Rivier,  Principes  du  Droit  de.s  Gens,  I.  125-127. ) 
While  sovereign  states  possess  in  point  of  law  equal  fundamental  rights,  yet 
individual  states,  like  individual  men,  exercise  power  in  proportion  to 
their  influence,  strength,  and  riches.  See,  in  this  relation,  Lawrence, 
Essays  on  some  disputed  Questions  in  Modern  International  Law,  Chap, 
v.,  entitled  "The  Primacy  of  the  Great  Powers." 

'.].  Pkopekty. 

(1)  owxEKsnir  and  transfeh. 

§  25. 

"The  rights  of  a  state  with  respect  to  property  consist  in  the  power 
to  acquire  territory  and  certain  other  kinds  of  property  susceptible  of 
being  held  by  it  in  absolute  ownership  b}^  an}"  means  not  inconsistent 
with  the  rights  of  other  states,  in  being  entitled  to  peaceable  posses- 
sion and  enjo3'nient  of  that  which  it  has  duly  obtained,  and  in  the 
faculty  of  using  its  property'  as  it  chooses  and  alienating  it  at  will. 

'•According  to  a  theory"  which  is  commonly  held,  either  the  term 
'property,'  when  employed  to  express  the  rights  possessed  by  a  state 
over  the  territory  occupied  by  it,  must  be  understood  in  a  diti'erent 
sense  from  that  which  is  attached  to  it  in  speaking  of  the  property  of 
individuals,  or  else  its  use  is  altogether  improper.  Propertv,  it  is  said, 
belongs  only  to  individuals:  a  state  as  such  is  incapable  of  owning  it; 
and  though  by  putting  itself  in  the  position  of  an  individual  it  may 
hold  property  subject  to  the  conditions  of  municipal  law,  it  has  merely 
in  its  proper  state  capacity  either  what  is  called  an  'eminent  domain' 
over  the  property  of  the  meml)ers  of  the  comnmnity  forming  it,  in 
virtue  of  which  it  has  the  power  of  disposing  of  everything  contained 
within  its  territory  for  the  general  good,  or  certain  supreme  rights, 
covering  the  same  ground,  but  derived  from  sovereignty."  It  can  not 
be  denied  that  the  innnediate  property  which  is  possessed  by  indi- 
viduals is  to  be  distinguished  for  certain  purposes  from  the  ultimate 
property  in  the  territory  of  the  state,  and  the  objects  of  property 
accessory  to  it.  which  is  vested  in  the  state  itself.  But  these  purposes 
are  foreign  to  international  relations.  The  distinction,  therefore, 
though  it  may  be  conveniently  kept  in  mind  for  purposes  of  classifica- 
tion in  dealing  with  the  rules  of  war,  has  no  further  place  in  inter- 
national law." 

Hall,  Int.  Law,  4th  ed.  47-18. 

As  to  question.s  of  i)roi)erty,  including  those  of  national  proprietary  rights,  and 
public  and  private  property,  see  Wheaton,  Elements,  Part  II.  §§  161-168. 

«  "Yattel,  Lib.  I.  Caj).  XX.  §§  235,  244;  but  see  also  Lib.  11.  G.  VII.  §  SI;  Heffter, 
§  64;  Bluntschli,  §  277.  Calvo  (§§  208-9)  di.-^tinguishes  l)etweeu  the  imblic  and  inter- 
national a.«pects  of  the  rights  oi  the  state  with  reference  to  property,  and  recognizes, 
as  do  also  De  Martens  (Precis  du  Droit  des  (Jens  Mo<lenie  de  1' Europe,  §  72)  and 
Riquelme  (Elenientosde  Derecho  Pul)lico  Internacional,  I.  23),  the  absolute  character 
of  the  latter  relativelv  to  other  States." 


64  5?TATES :    CHARACTERISTICS    AND    CLASSIFICATION.         [§  26. 

(2)    SLXVESSION    IN    CASE   OF    UXSCCCESSFUL   REVOLT. 

§26. 

"Certain  cotton,  the  public  property  of  the  Confederate  States  of 
America,  was  consigned  by  the  Confederate  government  to  the  defend- 
ants Prioleau  and  others,  a  firm  carrying-  on  business  at  Liverpool,  in 
pursuance  of  an  agreement  between  the  Confederate  government  and 
the  defendants,  whereby  the  defendants  were  entitled  out  of  the  pro- 
ceeds of  the  cotton  to  recoup  themselves  certain  charges  and  expenses 
incurred  by  them  under  the  provisions  of  the  same  agreement.  The 
Confederate  government  having  been  dissolved,  and  the  Confederate 
States  having  submitted  to  the  authority  of  the  United  States  govern- 
ment, the  latter  government  filed  a  bill  praying  to  have  the  cotton, 
which  had  arrived  at  Liverpool,  delivered  up  to  them,  and  for  an 
injunction  and  receiver.  It  appeared  by  the  evidence  that  the  defend- 
ants had.  under  the  agreement,  a  lien  upon  the  cotton  to  the  extent 
of  at  least  2(>,0()0  /.  Upon  motion  for  an  injunction  and  receiver, 
Jlcld^  that  the  property  in  question  was  now  the  property  of  the 
United  States  government,  but  that  they  must  take  it  subject  to  the 
obligations  entered  into  respecting  it  by  the  de  facto  Confederate 
government. 

"The  defendant  Prioleau  was  appointed  receiver,  with  power  to  sell 
the  cotton;  but  he  was  required  to  give  security  for  its  value  v.ltra 
the  'ilXOOO  /.,  the  amount  of  the  defendants'  lien." 

Syllabus,  Wood.  V.  (".,  Fuited  States  of  America  v.  Prioleau  (July  26,  1865), 
35  L.  J.,  Chancery.  X.  S.  7. 

AVhile  the  foregoing  case  was  pending,  Mr.  Seward,  in  a  note  to  Sir 
Frederick  Bruce.  June  11».  lsf)5,  took  the  ground  that  "all  insurgent 
or  piratical  vessels  fovuid  in  ports,  harbors,  or  waters  of  British 
dominions"  should  be  considered  as  '"  forfeited"  to  the  United  States, 
and  "ought  to  be  delivered  to  the  United  States  upon  reasonable 
application.""  Septem])er  7.  Is6,5,  orders  were  issued  by  the  colonial 
office  for  the  detention  of  the  Confederate  cruiser  Shenandoah  in  an}' 
British  port  she  might  enter.''  On  the  6th  of  November  she  arrived 
at  Liverpool,  where  she  was  innnediatelv  seized  by  the  British  authori- 
ties. Mr.  Adams  requested  her  delivery  up,  and  on  the  10th  of 
November  she  was  transferred.  ])y  order  of  the  board  of  admiralty, 
to  the  custody  of  the  United  States  consul,  the  crew  having  previously 
been  landed,  with  , their  effects.''  The  London  Thnes^  November  8, 
1S65,  said: 

"  With  regard  to  the  Shenandoah  herself,  we  apprehend  that  little 
hesitation  can  l)e  felt.     On  every  principle  of  law  she  belongs  to  that 

"  Dip.  Cor.  1865,  II.  177. 
&Id.,  I.  657. 
'^Id.,  I.  651.  662. 


§  26.]  EIGHTS    AND    DUTIES    OF    STATES.  65 

government  which  has  succeeded  to  all  the  rights  and  all  the  proYjerty 
of  the  de  facto  Confederate  Government.  This  doctrine  is  laid  down 
very  clearly  b}'  Vice-Chancellor  Page  Wood  in  the  decision  which  has 
been  so  much  criticised  of  late  in  America;  but  in  truth  it  is  scarceh' 
more  than  a  rule  of  common  sense.  Lord  Russell  did  not  affect  to 
override  it  by  the  provision  in  his  dispatch  for  the  disarming  of  Con- 
federate vessels  in  our  ports,  but,  on  the  contrary,  facilitated  the 
application  of  it  through  a  resort  to  the  proper  civil  tribunals.  The 
captain-general  of  Cuba  doubtless  acted  on  the  same  view  when  he 
delivered  over  the  StonetoaU  to  the  agents  of  the  United  States;  nor, 
indeed,  is  it  easy  to  imagine  on  whose  behalf  any  counter  claim  could 
be  preferred.  What  may  be  the  technical  formalities  to  be  observed 
in  the  transfer  is  a  matter  of  very  little  importance.  Whether  we 
ought  to  wait  for  a  demand,  or  to  make  over  the  ship  unasked, 
we  hold  it  in  trust  for  the  United  States  to  all  intents  and  purposes."" 
While  the  Confedei-ate  ram  Stoneioall  was  taken  possession  of  and 
delivered  up  to  the  United  States  b}'  the  captain-general  of  Cuba, 
with  the  approval  of  the  Government  at  Madrid,*  yet,  in  the  case  of 
the  steamer  Harriet  Lane  and  certain  other  property  of  the  Confed- 
erate Government  at  Havana,  the  Spanish  Government  took  the  ground 
that  there  were  questions  involved  of  a  judicial  nature;  and  the  consul 
of  the  United  States  at  Havana  was  empowered  to  proceed  in  the 
courts. '^ 

"Upon  the  suppression  of  a  rebellion,  the  restored  legitimate  gov- 
ernment is  entitled,  as  of  right,  to  all  monej^s,  goods,  and  treasure 
which  were  public  property  of  the  government  at  the  time  of  the 
outbreak,  such  right  ))eing  in  no  way  affected  by  the  wrongful  seizure 
of  the  property  by  the  usurping  government. 

''But  with  respect  to  property  which  has  been  voluntarily  contrib- 
uted to,  or  acquired  by.  the  insurrectionary  government  in  the  exer- 
cise of  its  usurped  authority,  and  has  been  impressed  in  its  hands 
with  the  character  of  public  property,  the  legitimate  government  is 
not,  on  its  restoration,  entitled  by  title  paramount,  but  as  successor 
onh'  (and  to  that  extent  recognizing  the  authority')  of  the  displaced 
usurping  government;  and  in  seeking  to  recover  such  property  from 
an  agent  of  the  displaced  government  can  only  do  so  to  the  same  extent, 
and  subject  to  the  same  rights  and  obligations,  as  if  that  government 
had  not  been  displaced  and  was  itself  proceeding  against  the  agent. 

"Therefore,  a  bill  by  the  United  States  Government,  after  the  sup- 
pression of  the  rebellion,  against  an  agent  of  the  late  Confederate 
Government,  for  an  account  of  his  dealings  in  respect  of  the  Confed- 
erate loan,  which  he  was  employed  to  raise  in  this  country,  was  dis- 

"Dip.  Cor.  1865,  T.  652. 

^  Id.,  II.  573,  574,  576.  577,  578. 

<Id.,  II.  554-555,  576,  578,  579. 

H.  Doc.  551 5 


66  states:  characteristics  and  classification.       [§  26. 

missed  with  costs,  in  the  a))sence  of  proof  that-any  property  to  which 
the  plaintiffs  were  entitled  in  their  own  right,  as  distinguished  from 
their  right  as  successors  of  the  Confederate  Government,  ever  reached 
the  hands  of  the  defendant,  and  on  the  plaintiff's  declining  to  have 
the  account  taken  on  the  same  footing  as  if  taken  between  the  Confed- 
erate Government  and  the  defendant  as  the  agent  of  that  Government, 
and  to  pay  what,  on  the  footing  of  such  account,  might  be  found  due 
from  them." 

Syllabu.e,  United  States  of  America  v.  McRae  (1869),  L.  R.  8  Eq.  69,  James, 
V.  C. ;  quoteil  by  Pliillimore,  Int.  Law,  Srd  ed.,  II.  154. 

In  1<S68  the  insurgent  government,  styled  the  National  Government 
of  Poland,  transferred  to  various  persons,  in  exchange  for  arms  and 
other  supplies,  bonds  of  the  "Land  Credit  Compan\'  {Credit  Fancier) 
of  the  Kingdom  of  Poland."  which  the  insurgent  exchequer  had 
receiA'cd  by  way  of  gift  or  in  payment  of  taxes.  The  insurrection  was 
soon  suppres.sed:  nor  was  the  insurgent  government  recognized  by  any 
foreign  power,  and  the  Russian  Government  subsequently  claimed 
paramount  title  to  all  the  bonds  .so  transferred.  "It  is  impossible,"' 
said  the  Department  of  State,  "for  the  L'nited  States  to  complain  of 
the  enforcement  b}'  Rus.sia  of  a  rule  for  which  they  are  themselves 
contending.  All  that  this  Government  could  ask  in  behalf  of  any  of 
its  citizens  holding  such  bonds  is  that  they  should  be  permitted 
to  show  before  the  judicial  tribunals  of  the  Empire  that  the  bonds 
in  question  are  not  tainted  as  instruments  of  rebellion,  or  that  if 
such  taint  attached  to  them  in  the  hands  of  former  holders  the  pres- 
ent assignees  have  acquired  title  in  the  ordinary  course  of  business 
and  without  .^  uch  notice,  actual  or  con.structive,  of  their  obnoxious 
quality  as.  under  the  law  of  Poland  and  Russia,  may  suffice  to  exempt 
such  assignees  from  the  forfeiture  to  which  the  bonds  were  subject  in 
the  hands  of  conscious  jiiders  of  rebellion.  If  the  commercial  polic}" 
of  the  Ru.ssian  P^mpire  does  not  admit  such  discrimination  between  a 
tortious  holder  of  peciuiiarv  securities  and  his  innocent  assignees,  I 
remain  of  the  opinion  that  it  is  the  duty  of  the  person  purchasing 
such  securities  to  inform  himself  of  the  law  under  which  the  securi- 
ties were  created,  and  that  he  nnist  })e  deemed  to  take  and  hold  them 
subject  to  any  defense  which  that  law  sanctioned.*' 

Mr.  Fish,  See.  of  State,  to  Mr.  Slu^ldon,  Dec.  11,  1869,  82  MS.  Dom.  Let.  480, 
referring  to  the  suits  maintained  by  the  United  State-s  in  England  and  in 
France  for  tlie  recovery  of  the  [>ul)nc  property  of  the  Confederacy,  and 
citing  Texa."*  v.  Wliite,  7  Wall..  700-74.3. 


CHAPTER  HI. 

STATES:  THEIR  RECOGNITION  AND  CONTINUITY. 

I.  General  Principles,  §  27. 
Right  and  duty. 
Mode. 

Premature  recognition. 
Conditional  and  limited  recognition. 
II,  Recognition  of  New  States. 

1.  Revolution  in  Spanish- America,  §  28. 

2.  Venezuelan  provinces,  §  29. 

Revolts  at  Caracas. 

Agents  to  the  United  States. 

President  Madison's  message,  November  5,  1811. 

Temporary  reascendency  of  Spain. 

Protest  as  to  Amelia  Island. 

3.  United  Provinces  of  South  America,  §  30. 

Assemblies  at  Buenos  Ayres  and  Tucuman. 
Demand  for  recognition. 
Opinion  of  Mr.  Adams. 
Refusal  to  receive  a  consul. 

4.  Chile,  §  31. 

5.  Colombia,  §  32. 

6.  Mexico,  §  33. 

7.  Peru,  §  34. 

8.  Course  of  United  States,  1816-1821,  §  35. 

Commission  of  inquiry,  1817. 

Mr.  Clay's  motion,  1818. 

Proposal  to  Great  Britain. 

Attempted  mediation  of  the  allies. 

President  Monroe's  message,  December  7,  1819. 

Action  of  the  House,  1820-1821. 

President's  message,  December  3,  1821. 

9.  Recognition  of  various  Latin-American  States,  §  36. 

Message  as  to  recognition,  March  8,  1822. 

Appropriation  for  missions. 

Protest  of  Spanish  minister. 

Mr.  Adams's  response. 

Republic  of  Colombia — New  Granada,  Ecuador,  Venezuela. 

Buenos  Ayres;  also,  Uruguay,  Paraguay. 

Chile. 

Mexico. 

67 


68  CONTENTS    OF    CHAPTER    III. 

II.  Recognition  ok  New  States — Continued. 

9.  Recognition  of  various  Latin-Anieriean  States,  §  86 — Continued. 
Brazil. 

Central  American  States. 
Peru. 

British  recognition:  Buenos  Ayres,  Colombia,  Mexico. 
Good  offices  with  Spain. 
Negotiations  with  Spain;  attitude  of  United  States. 

10.  Texas,  §  37. 

Report  of  3Ir.  Clay. 

President  Jackson's  message,  December  21,  1836. 

Appropriation  by  Congress. 

Act  of  recognition. 

Reply  to  ^lexican  protest. 

11.  The  Confederate  States,  §  38. 

Circular  of  Mr.  Black. 

Circular  of  Mr.  Seward. 

Failure  of  attempts  to  obtain  recognition. 

12.  Hayti  and  Dominican  Republic,  §  39. 

13.  Case  of  Cuba,  §  40. 

President  (i rant's  message,  December  7,  1875. 
President  Cleveland's  message,  December  7,  1896. 
President  McKinley's  message,  April  11,  1898. 
Joint  resolution  of  April  20,  1898. 

14.  Recognition  of  European  States,  §  41. 

Belgium. 

Greece. 

Case  of  Sicily. 

Case  of  Hungary. 

Rouniania. 

Servia. 

15.  States  in  Africa  and  the  East,  §  42. 

Liberia. 

Orange  Free  State. 

Congo. 

Corea. 

III.    ReCOCwNITION    ok    New    (  ioVKKNMENTS. 

1.  France,  §  43. 

Revolution  of  1792. 

Jefferson  to  Morris,  .March  12,  1793. 

Respon.«e  to  M.  Ternant. 

Reception  of  ( ienet. 

The  Empire  and  the  Monarchy. 

Revolution  of  1830;  Louis  I'hilippe. 

The  Re{)ul)hc,  184S. 

Revolution  of  18.51 :  Second  Em})ire. 

Mr.  Webster  to  Mr.  Rives,  January  12,  1852. 

The  Republic,  1870. 

2.  The  Netherlands,  §  44. 

Ca.«e  of  absorption. 
Death  of  a  sovereign. 

3.  Rome,  and  the  Papal  States,  §  45. 


CONTENTS    OB'    CHAPTER    III.  69 

III.  Recognition  of  New  Governments— Continued. 

3.  Rome,  and  the  Papal  States,  §  45 — Continued. 

Roman  Republic. 
Papal  States. 

4.  Spain,  §  46. 

Napoleonic  government:  Suspension  of. decision. 
Consular  functions. 
»  Ferdinand  VII. 

Duke  of  Aosta,  1870. 

The  Republic  and  its  successor. 

5.  Portugal,  §  47. 

Dom  ^Miguel. 

6.  German  Empire,  §  48. 

7.  Colombia,  §  49. 

Mr.  Van  Buren's  instructions. 
Mosquera  government  and  its  successor. 
Marroquin  govehiment,  1890. 

8.  Central  America,  §  50. 

Nicaragua:  Rivas- Walker  gDvernment. 

Costa  Rica,  1868. 

Salvador,  1890. 

Greater  Republic  of  Central  America. 

9.  Mexico,  §  51. 

Comonfort,  Zuloaga,  Miramon  governments. 

Juarez  government. 

The  Empire. 

First  Diaz  government. 

10.  Venezuela,  §  52. 

Paez  government. 

Falcon  government. 

Revolution  of  1879:  Guzman  Blanco. 

Crespo  government. 

Castro  government. 

11.  Bolivia;  Ecuador,  §  511 

Bolivia:  ^lelgarejo  government. 
Revolution  of  1899. 
I^cuador. 

12.  Peru,  §  54. 

Pierola  government. 

Calderon  government. 

Iglesias  government. 

Deposition  of  Iglesias;  interregnum. 

Provisional  government. 

13.  Brazil,  §  55. 

The  Republic. 

14.  Chile,  §  56. 

Revolution  of  1891. 

15.  Hawaii,  §  57. 

Deposition  of  the  monarchy. 

16.  Santo  Domingo,  §  58. 

Revolution  of  1899. 

IV.  RECottxiTiox  OK  Belligerency. 

1.  Conditions  and  effects  of  recognition,  §  59. 


70  CONTENTS    OF    CHAPTER    III. 

IV.  Recogxitiox  of  Belligerency — Continued. 

2.  The  American  Revolution,  §  60. 

3.  Revolution  in  Spanish-America,  §  61. 

Ini^tructions  to  collectors  of  customs,  July  3,  1815. 
President's  proclamation,  September  1,  1815. 
Note  of  Mr.  ^lonrtje,  January  19,  1816. 
President  Madison's  message,  December  26,  1816. 
Mr.  Monroe's  letter,  January  10,  1817. 
President  Monroe's  message,  December  2,  1817. 
Message  on  Amelia  Island,  November  17,  1818. 
Action  of  the  courts. 
President  Monroe's  message,  March  8,  1822. 

4.  Revolution  in  Texas,  §  62. 

Hospitality  to  vessels. 
Duty  of  parent  government. 

5.  Buenos  Ayres  and  Montevideo,  1844,  §  63. 

Duty  of  neutral  navies. 

6.  Peru — the  Vivanco  insurrection,  §  64. 

Nonaction  of  foreign  governments;  rights  and  duties  of  their  citizens. 

7.  Mexico,  §  65. 

Miramon  government;  questioii  of  blockade. 
Juarez  and  Maximilian. 

8.  The  Confederate  States,  §  66. 

Action  of  powers;  Mr.  Seward's  attitude. 

Withdrawal  of  recognition. 

Corres])ondence  of  Mr.  Adams  and  Karl  Russell,  1865. 

Decisions  of  the  Supreme  Court. 

Position  of  Mr.  Fish. 

9.  Cuba,  §  67. 

Insurrection  of  1868. 

President  Grant's  annual  message,  1869. 

S]>ecial  message,  June  13,  1870. 

Annual  message,  1875. 

Insurrection  of  1895. 

President  Cleveland's  annual  message,  1896. 

President  McKinley's  annual  message,  1897. 

10.  Colombia,  §  68. 

Insurrection  of  1885. 

11.  Ilayti,  §  69. 

Factional  contest,  1889. 

Retiuisite  evidences  of  recognition. 

12.  lirazil,  §  70. 

Naval  revolt,  1893. 

Action  of  foreign  representatives.  . 

Demand  for  recognition;  refusal. 

Limitation  of  insurgent  o})erations. 

Action  of  Admiral  Benham. 

I'osition  of  United  States. 

13.  Semi-sovereign  state  and  its  suzerain,  §  71. 

Madagascar. 

South  African  Republic. 


CONTENTS    OF    CHAPTER   III.  71 

V.  Acts  Falling  Short  of  Recognition. 

1.  Of  new  States,  §  72. 

Acts  and  implications. 

Unofficial  intercourse;  the  American  Revolution. 
Revolution  in  Spanish  America. 
Revolution  in  Yucatan. 
The  Confederate  States. 
•  Letter  of  His  Holiness  the  Pope. 

Delegation  of  the  South  African  Republics. 

Special  agents — South  America  and  Greece. 

Hayti. 

Santo  Domingo. 

Paraguay. 

Mr.  Mann's  mission  to  Hungary;  its  objects. 

Expressions  of  sympathy. 

Publication  of  ^Ir.  ^lann's  instructions. 

Mr.  Hiilsemann's  protest. 

Mr.  Webster's  reply. 

2.  Of  new  governments,  §  73. 

Unofficial  communications. 

Venezuela. 

Salvador. 

Mexico;  consular  functions. 

Nicaragua. 

Santo  Domingo. 

3.  Of  belligerency,  §  74. 

Insurgency  or  revolt. 
71.  Recognition,  by  whom  Determinable,  §  75. 
Summary  of  precedents. 
Spanish-American  States. 
Texas. 

Statement  of  Mr.  Buchanan. 
Mr.  Mann's  instructions. 
Position  of  Mr.  Seward. 
Decisions  of  the  courts. 
VII.  Continuity  op  States. 

1.  Territorial  changes,  §  76. 

2.  Changes  in  population,  §  77. 

3.  Political  changes,  §  78. 

4.  Suspension  of  independence,  §  79 


I.   GENERAL  PRINCIPLES. 

§  -27. 

Recoo-nition.  says  Rivior,  is  the  assurance  g'iven  to  a  new  state  that 
it  will  t)e  permitted  to  hold  its  place  and  rank,  in  the 
ig  an  u  y.  ^.|^j^,..^(^.jp|.  ^^f  .,,j  independent  political  organism,  in  the 
society  of  nations.  The  rights  and  attributes  of  sovereignty  belong  to  it 
independentl\^  of  all  recognition,  but  it  is  only  after  it  has  been  recog- 
nized that  it  is  assured  of  exercising  them.  Regular  political  relations 
exist  only  between  states  that  reciprocally  recognize  them.  Recogni- 
tion is  therefore  useful,  even  necessary  to  the  new  state.  It  is  also 
the  constant  usage,  when  a  state  is  formed,  to  demand  it.  Except  in 
consequence  of  particular  contentions,  no  state  is  obliged  to  accord  it. 
But  the  refusal  may  give  rise  to  measures  of  retoi'sion.  When,  after 
the  formation  of  the  Kingdom  of  Italy,  certain  German  states  persisted 
in  refusing  to  recognize  it,  Count  Cavour  withdrew  the  exequaturs  of 
their  consuls.     Recognition  was  then  accorded. 

Sometimes  there  has  been  a  long  interval  between  the  formation  of 
a  stat(>  and  its  recognition  by  other  powers,  notably  l)y  those  which 
have  some  direct  interest  in  the  matter.  The  Swiss  Confederation  was 
independent,  in  fact,  for  almost  two  centuries  before  it  was  officially 
r(>cognized  as  such  by  the  Empire  in  16-1:<S;  and  it  was  only  in  that  year 
that  Spain  recognized  the  independence  of  the  northern  Low  Countries. 
It  was  not  till  16<>8  that  Spain  recognized  the  independence  of  Portugal, 
which  had  been  separated  from  her  since  1»)40.  Greece  was  recognized 
)>y  the  guaranteeing  powers  in  ]S:27;  ])y  Turkey  in  1832.  Belgium  was 
not  recognized  by  Holland  till  188!).  Spain  and  Portugal  recognized 
the  states  of  Latin  Amerii-a  many  years  after  the  United  States  and 
(Jreat  Britain  had  done  so.  The  latter  power  recognized  the  United 
States  only  in  1TS2,  and  it  never  recognized  the  Napoleonic  kingdoms 
of  Italy  and  Westphalia. 

There  can  l)e  no  I'eason  for  refusing  to  recognize  a  federated  state, 
formed  ))v  the  union  of  recognized  states,  such  as  the  German  Empire 
in  ISTI.  and  the  North  (Jerman  Confederation  in  18<>6;  or  as  Switzer- 
land in  1848,  after  the  confederation  of  states  ])ecame  a  federated 
state.  For  those  states,  being  sovereign,  had  the  incontestable  right 
72 


§  27.]  GEMERAL    PRINCIPLES.  73 

to  bind  themselves  together  })y  a  federal  ))ond.  It  was  a  matter  which 
concerned  them,  and  did  not  concern  third  powers. 

It  is  necessar}'  not  to  confound  with  the  recognition  of  a  new  state, 
born  of  an  insurrection,  the  recoonition  of  an  insuroent  party  as  a 
belligerent. 

Recognition  is  generally  given  ))}'  a  svritten  or  oral  declaration  of 
the  recognizing  state;  it  matters  little  whether  the 
recognized  state  cooperates  in  it  or  not. 

Recognition  is  not  necessarily  express;  it  may  be  implied,  as  when 
a  state  enters  into  negotiations  with  the  new  state,  sends  it  diplomatic 
agents,  receives  such  agents  officialh\  gives  exequaturs  to  its  consuls, 
forms  with  it  conventional  relations. 

Recognition,  in  order  to  be  definitely  effective,  must  emanate  from 
a  government  which  is  itself  recognized.  If  a  de  facto  government, 
not  recognized,  should  accord  recognition  to  a  new  state,  the  restored 
government  would  not  be  l)ound  by  that  act. 

Recognition  may  be  collective,  as  in  the  case  of  the  Independent  State 
of  the  Congo,  by  the  Berlin  Conference  of  1885;  of  Roumania,  Servia, 
and  Montenegro,  by  the  Berlin  Congress  of  1878;  of  Greece  in  1832, 
and  of  Belgium  in  1831. 

Premature  recognition  constitutes  an  act  of  intervention,  committed 

in  favor  of  insurgents  or  of  a  conqueror.     The  reeog- 

Premature  recogni-  ^^j^j^^^  ^^  ^^^^  yx^\t^A  States  of  America  bv  France  in 

tion.  .  .       ■        .      , 

1(  (8  was  m  reality  an  act  ot  intervention,  as  is  shown 

by  Art.  II.  of  the  treaty."  Great  Britain  recognized  the  Kingdom  of 
Italy  before  Francis  11.  was  entireh'  dispossessed. 

The  Government  of  the  United  States  refused  in  1849  to  recognize 
the  independence  of  Hungary,  and  in  1875  that  of  Cuba. 

Recognition  is,  as  a  general  rule,  absolute  and  irrevocable.  Never- 
theless, it  mav  happen,  bv  wav  of  exception,  that  the 
Conditional  and  lim-  ...        .  '  ^•,•^         ••  ?  7         01 

.^  J  .  .         recoo-nition  is  conditional  or  is  given  ."(uh  laodo.     Such 

ited  recognition.     .         "  .  '^ 

is  the  case  when  certain  charges  or  restrictions  are 
imposed  on  a  new  state  at  the  time  when  its  independent  existence  is 
recognized,  such  as  an  obligatory  neutrality,  commercial  liberty,  or 
religious  liberty.  If  the  restriction  constitutes  a  condition,  the  powers 
which  have  subjected  their  recognition  to  it  have  the  right  to  insist 
upon  the  new  state's  conforming  itself  to  the  condition  imposed,  and, 
if  it  fails,  to  consider  their  recognition  as  not  given.  If  the  recogni- 
tion was  given  xul)  modo  it  will  not  be  withdrawn,  l)ut  other  measures 
may  be  taken,  such  as  the  suspension  or  rupture  of  diplomatic  rela- 
tions or  reprisals.     The  distinction  between  a  condition  and  a  modus 

"^  As  to  the  recofjnition  of  the  United  States  by  the  Xetherlands  in  1782,  and  cer- 
tain niedala  stricken  off  to  commemorate  the  event,  see  For.  Rei.  1891,  729-731. 


74  states:  recognition  and  continuity.  [§  28. 

{iiHxl,)  nisiy  be  less  ])reci8e  in  international  law  than  in  private  law, 
l)iit  it  is  not  useless.  If.  in  ease  of  a  dispute  as  to  the  character  of  the 
clause,  the  matter  should  be  sul)mitted  to  arbitration,  the  arbitrator 
would,  in  default  of  clear  indications,  pronounce  for  the  recognition 
siih  1111x1(1  rather  than  for  the  conditional  recog^nition,  seeing  that  the 
rule  is  irrevocability  and  that  acts  are  not  presumed  to  be  done  under 
conditions.  And  as  inde})endence.  the  essential  and  fundamental  right 
of  states,  forms  the  rule,  it  is  necessary,  from  the  moment  that  a  new 
state  has  been  recognized,  that  the  restriction  imposed  by  the  modus 
.should  be  construed  strictly. 

Examples  of  restrictions  imposed  on  the  independence  of  a  new  state 
are  tlu'  pernuuKMit  neutrality  of  Belgium;  the  restrictions  safeguard- 
ing religious  liberty,  imposed  not  only  on  Bulgaria,  a  semisovereign 
state,  by  Art.  Y.  of  the  treaty  of  Berlin,  but  also  on  ]\Iontenegro  by 
Art.  XXVII.  of  the  same  treaty,  on  Servia  ))y  Art.  XXXV..  and  on 
Koumania  by  Art.  XLTV.;  the  restrictions  imposed  on  the  Independent 
State  of  the  Congo  in  favor  of  connnercial  freedom,  by  the  general 
act  of  the  Congress  of  Berlin  of  Februai'v  ^♦J.  ISS,"). 

It  goes  without  saying  that  a  stat(>  may  t)e  recognized  as  a  sovereign 
state  without  l)eing  recognized  as  a  member  of  the  societ}'  of  nations. 
Sut'h  was  the  t-ase  of  Turkey  b(>fore  ISf)*'*;  such  is  still  the  case  with 
divei's  Asiatic  states  with  which  Euro})*'  and  America  entertain  con- 
tinual and  more  and  mor<>  intimat(>  relations,  while  refusing,  rightly 
or  wrongly,  to  comprehend  them  in  the  international  conmuniity. 

Kivier.  Priiicipi-s  du  Droit  <k's  (lens,  I.  57-<il. 

1 1.   R  FJ  •<)(;  XTIOX  < )  F  XF  US  T.  I  TES. 
1.   Rkvoi.itkix  in  Spanish   America. 

The  invasion  of  Spain  in  ISOS,  resulting  in  the  enforced  abdication 
of  Charles  IV.  and  the  transfer  to  Napoleon  of  all  right  and  titles  to 
the  Spanish  Crown  and  its  colonial  possessions,  was  followed  in  some 
of  the  Spanish  colonies  in  America  l)v  the  foi'mation  of  loyal  juntas, 
modeled  on  those  that  wcm-c  oi-ganizinl  in  Spain,  for  the  purpose  of 
resisting,  in  the  name  of  Ferdinand  \'1I..  son  of  the  dethroned  monarch, 
the  new  governuKMit.  of  which  .loseph  Bonapai'te,  who  was  crowned 
King  of  Spain  at  Bayonne  on  -June  lA.  ISOS.  was  the  nominal  head. 
Owing  to  various  caus(\s.  among  which  was  th(>  refusal  of  the  regency 
at  Cadiz  to  recognize  t\w  American  juntas,  the  loyalist  movement  in 
the  colonies,  which  was  originally  levelled  against  the  Napoleonic  gov- 
ernment in  .Spain,  was  succeeded  by  a  movement  for  independence  of 
Spain  itself.  But  previously  to  this  transformation  an  attempt  was 
made  to  enter  into  diplomatic  relations  with  the  United  States. 


§  29.]  RECOGNITION    OF    NEW    STATES.  75 

2.  Venezuelan  Provinces. 

§  29. 

In  1810,  the  victon"  of  Napoleon  in  Spain  appearing  to  be  complete, 
the  principal  inhal)itants  of  Caracas,  in  the  name  of 
evo    a     aracas.    j^erdinand  VII.,  deposed  the  Spanish  colonial  officials 
and  elected  a  supreme  junta,  called  the  "Junta  Conservatoria." 

April  25, 1810,  the  president  and  vice-president  of  this  junta  addressed 

to  the  Secretary  of  State  of  the  United  States  a  letter 

gen    accre  i  e    .^^^.^j.g^jj^jjjor  Don  Juan  Vicente  Bolivar  and  Don  Teles- 

to  United  States.  >^  ,  .    i      •        ,i-  i       -ct  i 

toro  Ozea  as  bearers  or  the  uitelligence  that  V  enezuela 

had  severed  her  allegiance  to  Spain."  In  the  course  of  1810  and  1811 
.several  papers  relating  to  the  political  affairs  of  Venezuela  were  pre- 
.sented  to  the  Department  of  State.  The  first  recorded  acknowledg- 
ment of  any  of  the.se  communications  is  found  in  a  letter  of  Mr. 
Monroe.  Secretary  of  State,  of  December  19,  1811,  in  which  he  .states 
that  he  had  laid  l)efore  the  President  a  cop}-  of  the  declaration  of  inde- 
pendence of  the  provinces  of  Venezuela,  which  Don  Telesforo  Ozea 
had  presented  to  him,  and  that  the  President  had  received  it  with  the 
interest  the  matter  deserved." 

In  his  annual  message  to  Congress  of  November  5,  1811,  President 

Madison  said:  "  In  contemplating  the  scenes  which  dis- 
President Madison's  tjug^j^h  this  momentous  epoch,  and  estimating  their 
essage,     ovem  ^.[.^jj^j^  ^^  ^^^^  attention,  it  is  impo.ssible  to  overlook 
ber  5,  1811.  i        i       •  ,  ,  , 

those  developing  themselves  among  the  great  com- 
munities which  occupy  the  southern  portion  of  our  own  hemisphere 
and  extend  into  our  neighborhood.  An  enlarged  philanthropy'  and  an 
enlightened  foreca.st  concur  in  imposing  on  the  national  councils  an 
obligation  to  take  a  deep  interest  in  their  destinies,  to  cherish  recipro- 
cal .sentiments  of  good  will,  to  regard  the  progress  of  events,  and  not 
to  be  unprepared  for  whatever  order  of  things  may  be  ultimately 
established."'^  This  part  of  the  message  was  referred  in  the  House  to 
a  select  committee,'  which  inquired  of  the  Secretary  of  State  whether 
it  was  known  to  the  Government  that  any  of  the  Spani.sh-American 
provinces  "have  declared  themselves  independent,  or  that  material 
changes  have  taken  place  in  their  political  relations."  Mr.  Monroe 
in  reply  transmitted  a  copy  of  the  Venezuelan  declaration,  and  added: 
""This  act  was  comnuuiicated  to  this  Government  by  order  of  the 
Congress,  composed  of  deputies  from  those  provinces,  asseml)led  at 
Caracas.  It  is  not  ascertained  that  any  other  of  the  Spanish  prov- 
inces have  as  3'et  entered  into  similar  declarations;  but  it  is  known 

"Papers-  relative  to  the  revolted  Spain-^h  jirovinfe-s,  MSS.  De^)!.  of  State. 
^Richardson,  Messages  and  Papers  of  the  President*!,  I.  494. 
c Annals  12th  Cong.,  I.  335. 


76  states:  recognition  and  continuity.  [§  29. 

that  most,  if  not  all  of  them,  on  the  continent  are  in  a  revolutionary 
state.  Th(»  prooress  made  in  that  direction  by  some  of  them  will  best 
appear  in  the  documents  which  have  already  ))een  communicated  to 
vou.""  The  conunittee,  Decem])er  10.  1811,  reported  a  joint  resolu- 
tion to  the  eliect  that  the  United  States  beheld  "with  friendh'  inter- 
est the  establishment  of  indei)endent  sovereignties  by  the  Spanish 
provinces  in  America,  consecpient  upon  the  actual  state  of  the  mon- 
archy to  which  they  belonged;  that,  as  neighbors  and  inhabitants  of 
the  same  hemisi)here,  the  United  States  feel  great  solicitude  for  their 
welfare,  and  that,  when  those  provinces  shall  have  attained  the  con- 
dition of  nations  by  the  just  exercise  of  their  rights,  the  Senate  and 
House  of  Uei)resiMitatives  will  unite  wnth  the  Executive  in  establishing 
with  them,  as  sovereign  and  independent  states,  such  amicable  rela- 
tions and  commercial  intercourse  as  may  require  their  legislative 
authority."''     No  action  on  this  resolution  Avas  taken. 

In  1S12  Caracas  was  destroyed  l)y  an  earthquake,  and  many  of  the 

inhabitants  of  the  country  perished.  The  colonial 
Temporary  reascend-    ,  ,  i-iAf  i  -i-ii-i  i 

;:„    .  tro<)i)s  were  demoralized;  Miranda  capitiuated,  and 

ency  of  Spain.  '  .  i         ,         •   i      . 

h-om  that  time  till  lSl!t  the  Spanish  forces,  under 

General  Morillo,  maintained  tluMr  ascendency.     By  an  act  of  May  8, 

I8l:i,  "for  the  relief  of  citizens  of  \'enezuela,"' Congress  authorized 

the  President  to  purchase  ^50. 000  worth  of  provisions  and  '"'"to  tender 

the  same  in  the  name  of  tiie  (xovernment  of  the  United  States  to  that 

of  Venezuela  for  the  relief  of  the  citizens  who  have  sutfen^d  by  the 

late  earth([uake."     This  act  was  carried  into   effect,  Mr.  Alexander 

Scott,  who  had  ])een  designated  as  an  agent  to  visit  the  countiy,  being 

directed  to  proceed  in  one  of  tiie  vessels  carrying  the  provisions  and 

to  aid  in  their  distribution.'' 

In  his  annual  ni(\ssage  of  December  2, 1817.  President  Monroe  stated 

that  orders  had  been  issued  for  the  suppression  of  an 
Protest  as  to  Amelia         ^   i  i  •  i  -     ,•  i      .     »         ,  •       t   i        i  .    i 

J.     ,  establishment  formed  at  Amelia  Island 'by  persons 

claiming  to  act  under  the  authority  of  some  of  the 
[Spanish]  colonies.""'  ^\'hell  the  ()cciq)ati<)n  of  the  island  by  the  forces 
of  the  United  States  under  these  orders  was  reported,  ''Vicente  Pazos, 
representing  himself  as  the  (leput(Hl  agent  of  the  authorities  acting  in 
the  name  of  the  Kepul)lics  of  V(>nezuela.  New  (iranada,  and  Mexico,'' 
on  March  11.  l.Sbs,  addnvssed  to  the  House  of  Kepresentatives  a  pro- 
test.'' A  discussion  ensued,  in  which  Mr.  Forsyth  declared  that  "the 
(piestion  for  the  House  to  consider  was  whether,  when  the  Constitution 
has  placed  the  conduct  of  our  foreign  relations  with  the  Executive,  a 


"Am.  State  \\i\>.,  For.  Rcl.  III.  ."):;(». 

''.\iii.  State  Pap.,  F.ir.  Rcl.  III.  ."i.S.S;  Annal.'!,  12tli  CoMtr.,  I.  427-428. 

'Int.  Arl)itrati()ns,  IV.  4:!i)2-4:W4.     Sec,  infra,  §  72. 

'/Am.  State  Paj).,  For.  Kcl.  IV.  i:W. 

<^  Annals,  15  Cong.  I  Sghs.  I.  406-408. 


§  30.]  RECOGNITION    OF   NEW    STATES.  77 

foreign  agent  shall  be  permitted  to  appeal  from  the  Executive  to  this 
House."  The  House,  by  a  vote  of  1-27  to  28.  refused  to  receive  the 
protest.'^  This  protest  was  made  by  virtue  of  authority  given  In'  Don 
Lino  de  Clemente,  at  Philadelphia,  as  deputy  from  Venezuela.  Later 
Mr.  de  Clemente  presented  himself  at  Washington,  on  December  11, 
1818,  as  Venezuela's  ''representative  near  the  United  States."  Mr. 
Adams,  on  the  ground  that  he  had  authorized  the  protest  above 
referred  to.  and  that  he  hud  also  issued  at  Philadelphia  a  paper  pur- 
porting to  be  a  commission  to  a  foreign  officer  to  undertake  an  expe- 
dition in  violation  of  the  laws  of  the  United  States,  refused  to  confer 
with  him  or  to  receive  from  him  any  further  conmiunication.^ 

3.    UNITED    PKOVIXCES    OF    SOUTH    AMERICA. 

§  30. 

May  25.  1810,  there  assembled  at  Buenos  Ayres,  agreeabh'  to  the 

summons  of  the  viceroy,  a  junta  of  nine  persons,  with 

Assemblies  at  Bue-  ^^^]l  powers.     This  was  the  first  step  in  the  revolution.^ 

^  ^     ^      Six  vears  later,  on  Julv  9.  1816,  a  congress  at  Tucuman 
Tucnman.  ^  ^  ,  ^        .  .  " 

declared  the  United  Provinces  of  Rio  de  la  Plata  to  be 

a  free  and  independent  nation. 

Thereupon  Colonel  Don  Martin  Thompson,  who  had  previously  been 

sent  to  the  United  States  as  agent  of  the  government 

of  Buenos  Avres,  was  ordered  to  discontinue  the  exer- 
nition.  .  .      .  '        . 

cise  of  his  functions,  and  an  appointment  as  agent  of 

the  United  Provinces  of  South  America  Avas  given  to  Don  Manuel 
Hermenegildo  de  Aguirre,  who  also  l)ore  a  semi-private  authority 
from  Chile  to  purchase  ships  of  war  and  warlike  materials.  His  com- 
mission did  not  invest  him  with  i"ank  as  a  pul)lic  minister,  nor  did  he 
bear  a  full  power  to  negotiate  as  such.  "'Neither  the  letter  of  which 
he  was  the  bearer,  nor  he  himself,  at  his  first  interviews  with  the  Sec- 
retar}'  of  State,  suggested  that  he  was  authorized  to  ask  the  acknowledg- 
ment of  his  government  as  independent;  a  circumstance  which  derived 
additional  weight  from  the  fact  that  his  predecessor,  Don  Martin 
Thompson,  had  been  dismissed  *  *  *  for  having  transcended  his 
powers."  Such  a  demand  was  made  by  him,  however,  in  a  letter  of 
December  16,  1817,  which  was  followed  by  conferences  with  the  Secre- 
tary of  State.  In  these  conferences  he  stated,  in  response  to  Mr. 
Adams's  inquiries,  that  the  government  whose  acknowledgment  he 
desired  "'  was  the  country  which  had,  before  the  revolution,  been  the 

«  Davis,  Treaty  Notes,  Treaty  vol.,  177(5-1887,  p.  1270;  Annals,  15  Cong.  1  Sess.  1251, 
1262,  12G8. 

'>Am.  State  Pap.,  For.  Rel.  IV.  412,  414. 

cAm.  State  Pap.,  For.  Rel.  IV.  228.  June  2f),  1810,  :Mr.  ,Ioel  K.  Poinsett  was 
appointed  "agent  to  Buenos  Ayres."     See,  infra,  §  72. 


78  states:    EECOGISriTION    AND    CONTINUITY.  [§  30. 

vicerovalty  of  La  Plata.""  When  asked  whethor  this  did  not  include 
Montevideo,  and  the  territory  occupied  by  the  Portuguese;  the  Banda 
Oriental,  understood  to  be  under  the  government  of  Artigas.  and 
se^  eral  provinces  still  in  the  undisputed  possession  of  Spain,  he  replied 
that  it  did,  but  that  Artigas,  though  hostile  to  the  government  of 
Buenos  Ayres,  supported  the  cause  of  independence,  and  that  Portugal 
could  not  ultimately  maintain  possession  of  Montevideo.  Mr.  Adams 
stated  that  any  acknowledgment  of  the  government  of  La  Plata  was 
deemed  by  the  President  to  be  for  the  time  inexpedient 

"Li  the  draft  of  a  letter  to  Mr.  Aguirre     *     *     *     I  have  stated  to 

him  the  grounds  upon  which  the  Government  of  the 

pinion  0       r.    (^"  j^j^p J  »^t,^j^(,s  have  been  deterred  from  an  acknowledg"- 
Adams.  ,  ,  .  .  .    . " 

ment  of  that  of  Buenos  Ayres  as  including  the  dominion 

of  the  whole  \iceroyalty  of  the  La  Plata.  The  result  of  the  late  cam- 
paign in  Venezuela,  by  comparing  the  royal  and  the  republican  bul- 
letins, has  })een  so  far  disadvantageous  to  the  latter  that  they  have 
undoubtedly  failed  in  obtaining  possession  of  any  part  of  the  coast. 
They  have,  therefore,  at  least  one  more  campaign  to  contest,  to  go 
through,  for  which  they  will  need  several  months  of  preparation. 
Bolivar  appears  to  have  resigned  the  chief  military  command  to  Paez, 
and  the  army  is  to  be  reorganized.  But  the  royalists  do  not  appear 
to  have  gained  any  ground,  and  are  evidently  too  much  weakened  by 
their  losses  to  act  upon  the  offensive.  In  this  state  the  independence 
of  Venezuela  can  scarcely  be  considered  in  a  condition  to  claim  the 
recognition  of  neutral  powers.  But  there  is  a  stage  in  such  contests 
when  the  parti(vs  struggling  for  independence  have,  as  I  conceive,  a 
right  to  demand  its  acknowledgment  by  neutral  parties,  and  when  the 
acknowledgment  may  l)e  granted  without  departure  from  the  obliga- 
tions of  neutrality.  It  is  the  stage  when  independence  is  established 
as  ti  matter  of  fact  so  as  to  leave  the  chances  of  the  opposite  part}^  to 
recover  their  dominion  utterly  desperate.  The  neutral  nation  must, 
of  course,  judge  for  itself  when  this  period  has  arrived;  and  as  the 
belligerent  nation  has  the  same  right  to  judge  for  itself,  it  is  very 
likely  to  judge  differently  from  the  neutral  and  to  make  it  a  cause  or 
pretext  for  war.  as  (ireat  Britain  did  expressly  against  France  in  our 
Revolution,  and  substantially  against  Holland.  If  wai-  thus  results  in 
point  of  fact  from  the  measure  of  recognizing  a  contested  independ- 
ence, the  moral  right  or  wrong  of  the  war  depends  upon  the  justice 
and  sincerity  and  prudence  with  which  the  r(>cognizing  nation  took 
the  step.  I  am  satisfied  that  the  cause  of  the  South  Americans,  so  far 
as  it  consists  in  the  assertion  of  independ(Mic(>  against  Spain,  is  just. 
But  the  justice  of  a  cause,  however  it  may  (Milist  individual  feelings  in 
its  favor,  is  not  sufficient  to  justify  thii'd  parties  in  siding  with  it.     The 


«Aui.  St.  Pap.,  For.  Kt-l.  IV.  17o-183. 


§  31.]  RECOGNITION    OF   NEW    STATES.  79 

fact  and  the  right  coinbined  can  alone  authorize  a  neutral  to  acknowl- 
edge a  new  and  disputed  sovereignty.  The  neutral  may.  indeed,  infer 
the  right  from  the  fact,  but  not  the  fact  from  the  right.  If  Buenos 
Aj'res  confined  its  demand  of  recognition  to  the  provinces  of  which  it 
is  in  actual  possession,  and  if  it  would  assert  its  entire  independence 
by  agreeing  to  place  the  United  States  upon  the  footing  of  the  most 
favored  nation,  *  *  *  j  should  think  the  time  now  arrived  when 
its  government  might  be  recognized  without  a  breach  of  neutrality." 

Mr.  Adams,  Sei-.  of  State,  to  the  President,  Aug.  24,   1818,  [Monroe  :MSS., 
Dept.  of  State. 

In  1818  Mr.  David  C.  De  Forest,  a  citizen  of  the  United  States, 
applied  for  recognition  as  consul-general  of  the  United  Provinces  of 
South  America.     This  recognition  was  refused." 

'•The  equality  of  rights  to  which  the  two  parties  to  a  civil  war  are 

entitled,  in  their  relations  with  neutral  powers,  does 
Eefusal  to   receive        ,        j.       i  j.     j.v.        •    \.j.  •         ji  j-.i  i 

not  extend  to  the  rights  enioved  bv  one  of  them,  bv 
a  consul.  .  ,  .  .  '  ,~ 

virtue   of   treat}'  stipulations  contracted   before   the 

war;  neither  can  it  extend  to  rights,  the  enjoyment  of  which  essen- 
tially depends  upon  the  issue  of  the  war.  That  Spain  is  a  sovereign 
and  independent  power,  is  not  contested  by  Buenos  Ay  res.  and  is 
recognized  by  the  United  States,  who  are  bound  by  treaty  to  receive 
her  consuls.  Mr.  De  Forest's  credential  letter  asks  that  he  may  be 
received  by  virtue  of  a  stipulation  in  supposed  articles  concluded  by 
Mr.  Worthington.'^  ))ut  which  he  was  not  authorized  to  make:  so  that 
the  reception  of  Mr.  De  Forest,  upon  the  credential  on  which  he 
founds  his  claim  would  imply  a  recognition  not  only  of  the  govern- 
ment of  the  Supreme  Director,  Pueyrredon,  but  a  compact  as  binding 
upon  the  United  States,  which  is  a  mere  nullity. 

"'Consuls  are,  indeed,  received  b}'  the  United  States  from  acknowl- 
edged sovereign  powers  with  whom  the}'  have  no  treaty.  But  the 
exequatur  for  a  consul-general  can  obviously  not  be  granted  without 
recognizing  the  authority  from  whom  his  appointment  proceeds  as 
sovereign.  'The  consul,"  says  Vattel  (book  '2,  chap.  '2,  Jj  84).  'is  not 
a  public  minister;  but  as  lie  in  charged  n'ltJt  a  eorinnission  froai  his 
sovereign,  and  received  in  that  quality  by  him  where  he  resides,  he 
should  enjoy,  to  a  certain  extent,  the  protection  of  the  laAv  of  nations.' 

"If,  from  this  state  of  things,  the  inhabitants  of  Buenos  Ayres  can 
not  enjoy  the  advantjige  of  ])eing  officially  represented  })efore  the 
courts  of  the  United  States  by  a  consul,  while  the  subjects  of  Spain 
are  entitled  to  that  privilege,  it  is  an  inequality  resulting  from  the 
nature  of  the  contest  in  which  they  are  engaged,  and  not  from  any 

«Am.  St.  Pap.,  For.  Rel.  IV.  413. 

&Mr.  W.  G.  D.  AVorthington,  agent  of  the  United  States  at  Buenos  Ayres,  nego- 
tiated certain  articles  which  he  neither  had  nor  pretended  to  liave  any  power  to 
negotiate. 


80  states:  kecognitiojs  and  continuity.  [§  31 

denial  of  their  rights  as  parties  to  a  civil  war.  The  recognition  ol 
them  as  such,  and  the  consequent  admission  of  their  vessels  into  the 
ports  of  the  United  States,  operate  with  an  inequality  against  the  other 
party  to  that  contest,  and  in  their  favor." 

Mr.  AdamtJ,  Sec.  of  State,  to  the  President,  Jan.  28,  1819,  Am.  St.  Pap.,  For. 
Rel.  IV.  413. 

After  the  recognition  of  the  South  American  governments,  Mr.  Adams  refused 
to  receive  Mr.  De  Forest  as  consul-general,  on  the  ground,  among  others, 
that  his  a])i)ointment  as  a  rei>resentative  of  the  I'nited  Provinces  of  La 
Phita  prftceeded  from  a  government  which  no  longer  existed.  (May  23, 
1822,  MS.  Notes  to  For.  Leg.  IIL  104.) 

4.  ('hilk. 

S31. 

The  revolutionary  movement  in  Chile  began  in  1810.  There  was 
formed  on  November  lij.  Isll.  a  junta,  which  exercised  the  functions 
of  government.  A  constitution  Avas  proclaimed  in  1812.  Two  years 
afterwards  the  battle  of  Rancagiui  brought  disaster  to  the  revolu- 
tionary forces:  l)ut,  sul)sequently  reorganized,  they  gained  at  Chaca- 
buco,  Fe))riiarv  1:^,  1817.  a  decisive  victory.  Just  a  year  later 
independence  was  proclaimed." 

5.  Colombia. 

§  32. 

The  reconquest  in  th(>  campaign  of  1819  of  New  Granada  to  the 
revolutionary  cause  was  followed  by  the  formation  of  the  Republic  of 
Colombia,  consi.-^ting  of  the  three  great  divisions  of  the  former  Span- 
ish government — Venezuela.  Cundinamarca.  and  Quito.  In  November, 
1820.  was  c-oncluded  the  armistice  between  Generals  ]Morillo  and  Boli- 
var, and  by  a  sidisequent  treaty  it  was  stipidated  that,  in  case  of  a 
renewal  of  the  war,  the  parties  woidd  condiu-t  it  in  a  manner  con- 
sistent with  the  modern  law  of  nations.  Fe})rua,ry  20,  1821,  Don 
Manuel  Torres,  as  agent  of  the  K('pul)lic  of  Col()n)l)ia.  notified  the 
United  States  of  the  formation  of  that  govermnent,  and  asked  for 
its  recognition.  The  reqi;est  he  i-enewed  on  November  3(»,  1821.  and 
again  on  January  2,  1822.  Meanwhile,  the  general  congress  of  the 
new  republic  had  assembled  and  formed  a  constitution,  founded  on 
the  principles  of  popular  rej)r('S(>ntation:  this  government  was  organ- 
ized and  was  in  full  operation,  and  the  principal  renmant  of  the  Span- 
ish force  was  destroyed  in  the  battle  of  Carabobo.  the  last  fragments 
beinif  conrtned  to  Porto  Calx'lio  and  Panama.'' 


«Mo<»re,  Int.  Arhitratiuns.  II.  4:}29,  4.W(). 

^Mr.  Adams,  S^c.  uf  State,  tn  ^Ir.  AiKk'rsoii,  minister  to  Colombia,  May  27,  1823, 
MS.  Inst,  to  U.  S.  Minister.-^,  IX.  274. 


§  35.]  RECOGNITION    OF    NEW    STATES.  81 

6.  Mexico. 

§  33. 

August  24,  1821,  General  O'Donoju,  commander  of  the  armies  of 
Spain,  and  Senor  Don  Agustin  Iturbide,  then  leader  of  the  movement 
for  Mexican  independence,  signed  a  treaty  of  peace  by  which  it  was 
stipulated  that  Mexico  should  be  recognized  as  an  independent  nation 
and  in  future  be  called  the  Mexican  Empire.  It  was  stated  in  the  treaty 
that  the  Spanish  government  then  held  in  Mexico  only  the  fortresses 
of  Vera  Cruz  and  Acapulco,  which  had  not  the  means  of  resisting  a 
well-directed  siege.  On  the  llth  of  the  ensuing  November  a  pro- 
visional junta  invested  Iturbide  with  the  title  and  powers  of  Emperor, 
and  on  May  19,  1822,  a  constituent  congress  declared  his  election  to 
that  office.     The  Spanish  Cortes  refused  to  ratif}'  the  treaty  of  peace.*' 

7.  Peru. 
§34. 

Owing  to  the  opposition  of  the  landed  proprietors,  who,  as  slave- 
holders, not  only  feared  the  loss  of  their  property,  but  also  a  social 
upheaval  tsuch  as  had  taken  place  in  San  Domingo,  no  revolutionary 
movement  took  place  in  Peru  till  1819-20.  The  Peruvians  even  sent 
an  army  into  Chile  in  1813  to  reestablish  the  Spanish  government. 
General  San  Martin,  however,  with  an  arm^^  from  Buenos  A^res, 
drove  out  the  Peruvians  in  1821,  and,  entering  Peru  itself,  took  Lima 
and  Callao.     The  independence  of  Peru  was  proclaimed  July  5,  1821.* 

8.  Course  of  the  United  States,  1815-1822. 

§35. 

During  and  after  1816  much  consideration  was  given  to  the  question 
of  recognizing  the  South  American  governments. 

In  1817  a  commission,  consisting  of  Caesar  A.  Rodney,  John  Gra- 
ham, and  Theodoric  Bland,  with  Henrv  M.  Bracken- 
Commission    of    In-     .1  .  i.        ^  J.  '     •       •    1.     ii 
,.,_         ridge  as  secretary,  was  sent  out  to  examine  into  the 

qniry,  1817.  ^ .    .  ... 

conditions  existing  in  South  America,  and  particularly 
in  Buenos  xVyres  and  Chile.  The  A'iews  of  the  commissioners,  which  in 
man}'  respects  differed,  were  embodied  in  separate  reports.  These 
reports  were  duly  transmitted  to  Congress,''  as  was  also  a  special  report 
obtained  from  Mr.  Poinsett,  formerly  agent  at  Buenos  Aj'res.''    The 


«  Moore,  Int.  Arbitrations,  II.  1209;  Br.  and  For.  St.  Tap.  VIII.  1288;  IX.  431,434, 
799. 

'^Sen.  Doe.  56,  54  Cong.  2  sess.  53. 

'^  Messages  of  Nov.  17  and  Dec.  15,  1818,  Am.  St.  Pap.  For.  Rel.  LV.  217-348, 

''Am.  St.  Pap.  For.  Rel.  IV.  323. 

H.  Doc.  551 0 


82  states:  recoghttion  and  continuity.  [§  35. 

general  result  of  these  reports  was  that  east  of  the  Andes  and  south 
of  Brazil,  the  jrovenunent  of  Buenos  Ayres.  claiming  to  represent  the 
United  Provinces  of  South  America,  asserted  over  the  whole  territory 
a  federal  jurisdiction  which  was  denied  and  successfully  repelled  by 
Paraguay  and  the  Banda  Oriental,  and  that  a  state  of  war  existed 
Ix'tween  Buenos  Ayres  and  the  latter  state.  To  the  west  of  the 
Andes.  Chile  was  in  the  ix)Ssession  of  a  dictator,  with  no  representative 
goveriunent." 

In  ]\Iarch.  isls.  while  the  general  appropriation  bill  was  under  con- 
sideration. Mr.  Clay  moved  in  the  House  an  amend- 
^^i«    °  ^°°  'went  appropriating  i^lS.oOo  for  an  outfit  and  a  year's 
salary  for  a  minister  to  the  government  of  Rio  de  la 
Plata.     This  motion  was  on  March  30  rejected  by  a  vote  of  115  to  45.^ 
''Independently  of  the  objection  to  it  that  it  had  the  appearance  of 
dictating  to  the  Executive  with  regard  to  the  execution  of  its  own  duties, 
and  of  manifesting  a  distrust  of  its  favorable  disposition  to  the  inde- 
pendence of  the  colonies,  for  which  there  was  no  cause,  it  was  not 
thought  advisa))le  to  adopt  any  measure  of  importance  upon  the  imper- 
fect information  then  jwssessed.  and  the  motive  for  declining  to  act 
was  the  stronger  from  the  circumstiince  that  three  commissioners  had 
been  sent  to  visit  several  parts  of  the  South  American  continent,  chiefly* 
for  the  purpose  of  obtaining  more  precise  and  accurate  information,"'" 
•"In  August.  1S18.  a  formal  proposal  was  made  to  the  British  gov- 
ernment for  a  concerted  and  contemporary  recognition 

^  ^  .,  .  of  the  independence  of  Buenos  Avres,  then  the  onlv 

Britain.  ^      ^  ,  *  ■        , 

one  of  the  South  American  states  which,  having 
declared  independence,  had  no  Spanish  force  contending  against  it 
within  its  })orders:  and  where  it  therefore  most  unequivocally  existed 
in  fact. 

"The  British  government  declined  accepting  the  proposal  themselves, 
without  however  expressing  any  disapprobation  of  it;  without  dis- 
cussing it  as  a  question  of  principle,  and  without  assigning  any  rea,son 
for  the  refusal,  other  than  that  it  did  not  then  suit  with  their  policy." 

Mr.  Adams,  Sec-,  of  State,  to  Mr.  Anderson,  minister  to  Colombia,  May  27, 
1S23,  MS.  Inst,  to  I'.  S.  Mini.-ters,  IX.  274,  278,  279.  See,  also,  Adams' 
Memoirs,  IV.  117-118. 


"Davis,  Treaty  Notes,  Treaty  Vol.  1776-1887,  p.  1271. 

''Annals,  15  ("onie.,  1  si'ss.  II.  HVin;   Adams'  ^lemoirs,  IV.  67,71,72. 

••Mr.  Adam.-,  Sec.  of  .State,  to  Mr.  Ciallatin,  minister  to  France,  May  19,  1818,  MS. 
Instr.  to  U.  S.  Ministers,  VIII.  iSo.  In  an  instniction  to  Mr.  Rnsh,  mini.-ter  to  Eng- 
land, on  the  foll<jwing  day,  Mr.  Adams  said:  "The  time  is  j)robably  not  remote  when 
the  a«knowle<lgment  of  the  South  American  indeiK-ndenct^  will  l>e  an  act  of  friendship 
towanl.s  Spain  herself.  When  it  will  l>e  kindness  to  her  to  put  an  end  to  that  self- 
delu.<ion  under  which  she  is  wa.-ting  all  the  remnant  of  her  res<jurce,  in  a  war, 
infamous  by  the  atrcxities  with  which  it  is  carried  on,  and  utterly  hopeless?  of 
guccess." 


§  35.]  RECOaNITIOK^    OF    NEW    STATES.  8S 

"By  a  circular  note,  addressed  by  the  ministers  of  Spain  to  the 

allied  powers  with  whom  the}'  are  respectively  accred- 

.-  ™^.t   .,f-  ^*     ited.   it  appears   that  the  allies  have  undertaken  to 

tion  of  the  Allies.  .  '^'^  o      •  i     i       o 

mediate  between  Spain  and  the  South  American  prov- 
inces, and  that  the  manner  and  extent  of  their  interposition  would  be 
settled  by  a  congress  which  was  to  have  met  at  Aix-la-Chapelle  in 
September  last.  From  the  general  policy  and  course  of  proceeding 
observed  by  the  allied  powers  in  regard  to  this  contest,  it  is  inferred 
that  they  will  confine  their  interposition  to  the  expression  of  their 
.sentiments,  abstaining  from  the  application  of  force.  1  state  this 
impression,  that  force  will  not  be  applied,  with  the  greater  satisfac- 
tion, because  it  is  a  course  more  consistent  with  justice,  and  likewise 
authorizes  a  hope  that  the  calamities  of  the  war  will  be  confined  to 
the  parties  only,  and  will  be  of  shorter  duration. 

"From  the  view  taken  of  this  subject,  founded  on  all  the  informa- 
tion that  we  have  been  able  to  obtain,  there  is  good  cause  to  be  satis- 
fied with  the  course  heretofore  pursued  by  the  United  States  with 
regard  to  this  contest,  and  to  conclude  that  it  is  proper  to  adhere  to  it, 
especially  in  the  present  state  of  affairs.'* 

Annual  Message  of  Nov.  16,  1818,  Am.  St.  Pap.  For.  Rel.  IV.  215.  See,  also, 
Adams'  Memoirs,  IV.  165-167,  205-206. 

As  to  the  opposition  of  the  allied  powers  to  the  recognition  of  the  independ- 
ence of  the  Spanish  colonies  by  the  United  States,  see  Mr.  Gallatin,  min- 
ister to  France,  to  ^Ir.  Adams,  Aug.  10,  1818,  Gallatin's  Writings,  II.  73. 

In  another  letter  to  Mr.  Adams,  Nov.  5,  1818,  Mr.  Gallatin  (Writings,  II.  75) 
said: 

"I  had  upon  every  occa.sion  stated  that  the  general  opinion  of  the  United 
States  nuLst  irresistibly  lead  to  such  a  recognition;  that  it  is  a  question  not 
of  interest,  but  of  feeling,  and  that  this  arose  much  less  from  the  wish  of 
seeing  new  Repu))lics  established  than  that  of  the  emancipation  of  Spanish 
America  from  Europe.  *  *  *  We  had  not,  either  directly  or  indirectly, 
excited  the  insurrection.  It  had  been  the  spontaneou.s  act  of  the  inhab- 
itants and  the  natural  effect  of  causes  which  neither  the  United  States  nor 
Europe  could  have  controlled.  We  had  lent  no  assistance  to  either  party; 
we  had  preserved  a  strict  neutrality.  But  no  European  government  could 
be  surprised  or  displeased  that  in  such  a  cause  our  wishes  should  l)e  in  favor 
of  the  success  of  the  colonies,  or  that  we  should  treat  a.«  independent  powers 
those  amongst  them  which  had  in  fact  established  their  independence." 

"  In  the  civil  war  existing  between  Spain  and  the  Spanish  provinces 
in  this  hemisphere  the  greatest  care  has  been  taken  to 
resi  ent     onroe  s  (,„fQj.(.g  ^jjg  ]aw?,  intended   to  preserve  an  impartial 
jgjg      '  '  neutrality.     *     *     *     The  progress  of  the  war,  how- 

ever, has  operated  *  *  *  jn  favor  of  the  colonies. 
Buenos  Ayres  still  maintains  unshaken  the  independence  which  it 
declared  in  1816,  and  has  enjoyed  since  1<S10.  Like  success  has  also 
lately  attended  Chili,  and  the  provinces  north  of  the  La  Plata  border- 
ing on  it,  and  likewise  Venezuela.     *     *     *     Should  it  become  mani- 


84  states:  eecognition  and  continuity.  [§35. 

fest  to  tht>  world  that  the  efforts  of  Spain  to  subdue  these  provinces 
will  be  fruitless,  it  may  be  presumed  that  the  Spanish  Government 
itself  will  o'ive  up  the  contest.  In  producing  such  a  determination,  it 
can  not  be  doubted  that  the  opinion  of  friendlj^  powers,  who  have 
taken  no  part  in  this  controversy,  will  have  their  merited  influence." 
Annual  message  of  Dee.  7,  1819,  Am.  St.  Pap.  For.  Rel.  IV.  628. 

April  4,  1820,  Mr.  Clay  moved  in  the  House  an  appropriation  for 
an  outiit  and  salary  for  such  minister  or  ministers  as 
°  ^^820-1821°^^^  ^^^   President   might,   with   the   concurrence  of   the 
Senate,  send  to  any  of  the  South  American  govern- 
ments that  had  established  and  were  maintaining  their  independence 
against  Spain,     This  motion  was  carried  by  a  majority  of  5,  but  noth- 
ing further  was  done." 

At  the  next  session  Mr.  Clay  renewed  his  efforts  in  behalf  of  recog- 
nition. A  motion  for  an  appropriation  was  defeated;  but  a  motion 
was  carried  by  which  it  was  declared  that  the  House  "  participates 
with  the  people  of  the  United  States  in  the  deep  interest  which  they 
feel  for  the  success  of  the  Spanish  provinces  of  South  America,  which 
are  struggling  to  establish  their  liberty  and  independence,  and  that  it 
will  give  its  constitutional  support  to  the  President  of  the  United 
States  whenever  he  may  deem  it  expedient  to  recognize  the  sover 
eignty  and  independency  of  any  of  the  said  provinces."* 

''It  is  understood  that  the  colonies  in  South  America  have  had  great 

success  during  the  present  year  in  the  struggle  for  their 
President's  Message,  •    j  j  *      *      *      tj.   i         i  i  •£     j. 

o  ,Qoi        mdependence.     *     *     *     |t,  i^^s  long    been    manifest 
Dec.  3,  1821.  \  .  ^         ° 

that  it  would  be  impossible  for  Spain  to  reduce  these 

colonies  by  force,  and  equally  so  that  no  conditions  short  of  their  inde- 
pendence would  be  satisfactory  to  them.  It  may,  therefore,  be  pre- 
sumed, and  it  is  earnestly  hoped,  that  the  Government  of  Spain,  guided 
by  enlightened  and  liberal  counsels,  Avill  find  it  to  comport  with  its 
interests,  due  to  its  magnanimity,  to  terminate  this  exhausting  contro- 
versy on  that  basis.  To  promote  this  result,  by  friendly  counsel  with 
the  Government  of  Spain,  will  be  the  object  of  the  Government  of  the 
United  States.*' 

Annual  message  of  Dec.  8,  1821,  Davis,  Treaty  Notes,  Treaty  Vol.  1776-1887, 
1).  1272;  Am.  St.  Pap.  For.  Kel.  IV.  7;W. 


« Davis,  Treaty  Notes,  Treaty  Vol.  177(>-'SS7,  ji.  1272;  Annals,  16  Cong.  1  sess. 
II.  1781,  2229,  2230. 

''Davis,  Treaty  Notes,  Treaty  Vol.  L776-1887,  p.  1272;  Annals,  16  Cong.  2  sess. 
1071,  1077,  1081,  1091-1092. 


§  36.]  RECOGNITION    OF    NEW    STATES.  85 

9.  Recogxitiox  of  American  States. 

§36. 

"On  the  80th  of  January,  1822,  the  House  requested  the  President 
to  hi}"  before  it  communications  from  the  agents  of 
resi  en  s    essage,  ^^^  United  States  in  the  revolted  states,  or  from  the 
March  8.  1822.  •       i      tx    •      i     ,  ,  .   , 

agents  ot  those  states  in  the  I  nited  States  which  might 

tend  to  show  the  political  conditions  of  tho-se  Governments,  and  the 
state  of  war  between  them  and  Spain."  The  President  complied  with 
the  request  in  a  me.s.sage  on  the  8th  of  March,  1822,*  which  message 
was  also  communicated  to  the  Senate  on  the  same  day.' 

"In  this  message  the  President  sa^^s:  'This contest  has  now  reached 
such  a  stage,  and  been  attended  with  such  decisive  success  on  the  part 
of  the  provinces,  that  it  merits  the  most  profound  consideration  whether 
their  right  to  the  rank  of  independent  nations,  with  all  the  advantages 
incident  to  it  in  their  intercourse  with  the  United  States,  is  not  complete. 
Buenos  Ayres  assumed  that  rank  by  a  formal  declaration  in  1816,  and 
has  enjoyed  it  since  1810.  *  *  *  The  provinces  composing  the 
Republic  of  Colombia,  after  having  .separately  declared  their  independ- 
ence, were  united  by  a  fundamental  law  of  the  ITth  of  December,  1819. 
*  *  *  Chili  declared  independence  in  1818,  and  has  since  enjoj^ed 
it  undisturbed,  and  of  late,  by  the  assistance  of  Chili  and  Buenos  Ayres, 
the  revolution  has  extended  to  Peru.  Of  the  movement  in  Mexico,  our 
information  is  less  authentic,  but  it  is,  nevertheless,  di.stincth'  under- 
stood that  the  new  Government  has  declared  its  independence,  and  that 
there  is  now  no  opposition  to  it  there,  nor  a  force  to  make  it.  *  *  * 
Thus  it  is  manifest  that  all  those  provinces  are  not  onl\'  in  the  full 
enjoyment  of  their  independence,  but,  considering  the  state  of  the  war 
and  other  circumstances,  that  there  is  not  the  most  remote  prospect  of 
their  being  deprived  of  it.  *  *  *  Of  the  views  of  the  Spanish  Gov- 
ernment on  this  subject,  no  particular  information  has  been  recently 
received.  *  *  *  Xor  has  an}-  authentic  information  been  recently 
received  of  the  disposition  of  other  powers  respecting  it.  A  sincere 
desire  has  been  cherished  to  act  in  concert  with  them  in  the  proposed 
recognition.  *  *  *  In  proposing  this  measure,  it  is  not  contem- 
plated to  change  thereby,  in  the  slightest  manner,  our  friendly  rela- 
tions with  either  of  the  parties,  but  to  observe  in  all  respects,  as  here- 
tofore, should  the  war  be  continued,  the  most  perfect  neutrality 
between  them.''' 

Davis,  Treaty  Xotes,  Treaty  Vol.  1776-1887,  p.  1272. 


"Annals,  17  Cong.  1  sess.  82.5-828. 
'^Id.  1238. 

cid.  284;  Am.  St.  Pap.  For.  Rel.  IV.  818. 
''Am.  State  Pap.  For.  Rel.  IV.  819. 


86  states:  recognition  and  continuity.  [§  ^^. 

March  19,  1822,  the  House  Committee  on  Foreign  Affairs  presented 
a  unanimous  report,   in  which,   after  reviewing  the 
ppropria  ion     °^  ^-.^^^.^^  and  expressing  the  opinion  that '"it  is  iust  and 
missions.  .  '  "  i         •     i  i  i>      i 

expedient  to  acknowledge  the  independence  of  the 
several  nations  of  Spanish  America,  without  any  reference'  to  the 
diversity  in  the  forms  of  theii'  govermnents.*''  thej'  proposed  that  the 
House  "'concur  in  the  opinion  expressed  by  the  President  in  his  mes- 
sage of  the  Sth  of  March,  1S22,  that  the  American  provinces  of  Spain, 
which  have  declared  their  independence  and  are  in  the  enjoyment  of 
it,  ought  to  V)e  recognized  by  the  United  States  as  independent 
nations,"  and  that  the  Committee  on  Ways  and  Means  ])e  instructed 
to  report  a  bill  appropriating  not  more  than  $100,000  ""to  enable  the 
President  of  the  United  States  to  give  due  effect  to  such  recognition." 
May  J:,  1822,  an  act  was  approved  entitled  "An  act  making  an 
appropriation  to  defray  the  expenses  of  missions  to  the  independent 
nations  of  the  American  continent."  By  this  act  the  sum  of  $100,000 
was  appropriated  '"  for  such  missions  to  the  independent  nations  of  the 
American  continent  as  the  President  of  the  United  States  may  deem 
proper."^ 

"In  the  Xational  r/itelUyt'nrt'i'  of  this  day  I  have  seen  the  message 

of  the  President  to  the  House  of  Representatives,  in 

Protest  of  Spanish       i  •   i       i  -u  -x-  i        i.i        jr    •,     i 

.  .  /  which    he   proposes   the   recognition    bv  the    L  nited 

minister.  ^  .  . 

States  of  the  insurgent  governments  of  Spanish 
America.  How  great  my  surprise  was  may  be  easily  judged  by  any- 
one acquainted  with  the  conduct  of  Spain  toward  this  Republic,  and 
who  knows  the  immens«>  sacritices  which  she  has  made  to  preserve 
her  friendship.  *  '"  "  In  vain  will  a  parallel  be  attempted  to  be 
drawn  between  the  ('mancipation  of  this  Republic  and  that  which  the 
Spanish  rel)els  attemi)t.  *  "'  *  But  even  admitting  that  morality 
ought  to  yield  to  policy:  what  is  tlu^  })resent  state  of  Spanish  America, 
and  what  are  its  goveriunents.  to  entitl(>  them  to  recognition^  Buenos 
Ayres  is  sunk  in  the  most  complete  anarchy,  and  each  day  sees  new 
despots  produced,  who  di.sappear  the  next.  Peru,  conquered  by  a  rebel 
army,  has  near  the  gates  of  its  capital  another  Spanish  army,  aided  by 
part  of  the  inhal)itants.  In  C'hile.  an  individual  suppresses  the  senti- 
ments of  the  inhabitants,  and  his  violence  presages  a  sudden  change. 
On  the  coast  of  Firma,  also,  the  Spani.sh  ])anner  waves,  and  the  insur- 
gent generals  are  occupied  in  (juarreling  with  their  own  compatriots, 
who  prefer  taking  the  part  of  a  free  power  to  that  of  being  the  slave 
of  an  adventurer.  In  Mexico,  too.  there  is  no  government;  and  the 
result  of  the  (juestions  which  the  chiefs  commanding  there  have  put 
to  Spain  is  not  known.     Where,  then,  are  those  governments  which 

"Annals,  ITConj;.  1  .«ess.,  and  particularly  II.  KiSli  et  ,'Hfq. 
''3  Stat.  t)78. 


§  36.]  RECOGNITIOI!^^    OF    NEW    STATES,  87 

ought  to  be  recognized  ?  Where  the  pledges  of  their  stability  ?  Where 
the  proof  that  those  provinces  will  not  return  to  a  union  with  Spain, 
when  so  many  of  their  inhabitants  desire  it^  And.  in  tine,  where  the 
right  of  the  United  States  to  sanction  and  declare  legitimate  a  rebellion 
without  cause,  and  the  event  of  which  is  not  even  decided  i 

"1  do  not  think  it  necessary  to  prove  that,  if  the  state  of  Spanish 
America  were  such  as  it  is  represented  in  the  message;  thaft  if  the 
existence  of  its  governments  were  certain  and  established;  that  if  the 
impossibility  of  its  reunion  with  Spain  were  so  indisputable;  and  that 
if  the  justice  of  its  recognition  were  so  evident,  the  powers  of  Europe, 
interested  in  gaining  the  friendship  of  countries  so  important  for  their 
commerce,  would  have  been  negligent  in  fulfilling  it.  But,  seeing 
how  distant  the  prospect  is  of  even  this  result,  and  faithful  to  the  ties 
which  unite  them  with  Spain,  they  await  the  issue  of  the  contest,  and 
abstain  from  doing  a  gratuitous  injury  to  a  friendh'  Government,  the 
advantages  of  which  are  doubtful,  and  the  odium  certain.  *  *  * 
I  think  if  lay  duty  to  prote^t^  as  F do  solemnly  protest^  against  the  rec- 
ognition of  the  governments  mentioned  ^  of  the  insurgent  Spanish  prov- 
inces of  America^  hy  the  United  States^  declaring  that  it  can  in  no  icay 
ncnv,  or  at  any  tinu\  lessen  or  in  ralidate  in  the  least  the  right  of  Spain 
to  the  said  provinces^  or  to  employ  whatever  means  may  he  in  her  power 
to  reunite  them  to  the  rtst  of  ht^r  domitiions.^^ 

Mr.  Anduaga,  Spanish  minister,  to  Mr.  Adams,  Sec.  of  State,  March  9,  1822, 
Am.  St.  Pap.  For.  Rel.  IX.  845. 

Replying  to  the  foregoing  protest.  Mr.  Adams,  after  assuring  Mr. 
Anduaga  of  the  '*  earnestness  and  sinceritv "'  with 
which  the  United  States  desired  to  cultivate  "  the  most 

sponse. 

friendly  relations"  with  Spain,  and  of  the  •"cordial 
sympathy '"  with  which  it  had  witnessed  the  spirited  and  energetic 
exertions  of  the  Spanish  people  to  maintain  ""their  independence  of 
all  foreign  control  and  their  right  of  self-government."  said: 

'•In  every  question  relating  to  the  independence  of  a  nation  two 
principles  are  involved,  one  of  right  and  the  other  of  fact;  the  for- 
mer exclusively  depending  upon  the  determination  of  the  nation  itself, 
and  the  latter  resulting  from  the  successful  execution  of  that  determi- 
nation. This  right  has  been  recently  exercised  as  well  by  the  Spanish 
nation  in  Europe  as  b^'  several  of  those  countries  in  the  American 
hemisphere  which  had  for  two  or  three  centuries  been  connected,  as 
colonies,  with  Spain.  In  the  conflicts  which  have  attended  these  revo- 
kitions  the  United  States  have  carefully  abstained  from  taking  any 
part,  respecting  the  right  of  the  nations  concerned  in  them  to  main- 
tain or  reorganize  their  own  political  constitutions,  and  observing, 
wherever  it  was  a  contest  by  arms,  a  most  impartial  neutrality;  but 
the  civil  war  in  which  Spain  was  for  sonn'  years  involved  with  the 


88  states:  recognition  and  continuity.  [§36. 

inhabitants  of  hor  colonies  in  America  has,  in  substance,  ceased  to 
exist.  Treaties  equivalent  to  an  ackiiowledgment  of  independence 
have  been  concluded  by  the  commanders  and  viceroys  of  Spain  herself 
with  the  Republic  of  Colombia,  with  Mexico,  and  with  Peru, , while  in 
the  provinces  of  La  Plata  and  in  Chili  no  Spanish  force  has  for  several 
years  existed  to  dispute  the  independence  which  the  inhabitants  of 
those  countries  had  declared. 

'■'"Under  these  circumstances,  the  Government  of  the  United  States, 
far  from  consulting  the  dictates  of  a  policy  questionable  in  its  moral- 
ity, yielded  to  an  obligation  of  duty  of  the  highest  order  by  recogniz- 
ing as  independent  states  nations  which,  after  deliberately  asserting 
their  right  to  that  character,  have  maintained  and  established  it  against 
all  the  resistance  which  had  been  or  could  be  brought  to  oppose  it. 
This  recognition  is  neither  intended  to  invalidate  any  right  of  Spain, 
nor  to  affect  the  employment  of  any  means  which  she  may  yet  be  dis- 
posed or  enabled  to  use  with  the  view  of  reuniting  those  provinces  to 
the  rest  of  her  dominions.  It  is  the  mere  acknowledgment  of  existing' 
facts  with  the  view  to  the  regular  establishment  with  the  nations  newly 
formed  of  those  relations,  political  and  commercial,  w^hich  it  is  the 
moral  obligation  of  civilized  and  Christian  nations  to  entertain  recip- 
rocally with  one  another. 

''It  will  not  be  necessary  to  discuss  with  you  a  detail  of  facts  upon 
which  your  information  appears  to  be  materialh'  different  from  that 
which  has  been  communicated  to  this  Government  and  is  of  public 
notoriety,  nor  the  propriety  of  the  denominations  which  you  have 
attributed  to  the  inhabitants  of  the  South  American  provinces.  It  is 
not  doui)ted  that  other  and  more  correct  views  of  the  whole  subject 
will  very  shortly  ))e  taken.  *  *  *  They  [the  United  States]  confi- 
dently rely  that  the  tiuK^  is  at  hand  when  all  the  governments  of 
Europe  friendly  to  Spain,  and  Spam  herself,  will  *  *  *  c'oncur 
in  the  acknowledgment  of  the  independence  of  the  American  nations.'" 

Mr.  Adams,  Sec.  of  State,  to  ^Ir.  Amluaga,  Spanish  minister,  April  6,  1822, 
Am.  St.  Pap.  For  Rel.  IV.  846.  Tliis  eorrespondence  was  communicated 
to  the  Senate  April  2«),  1822,  agreeably  to  a  reque.«t  of  that  body. 

"The  recognition  mes.«age,  and  the  ])roceedings  almost  unanimous  of  l)oth 
Houses  of  Congress  on  the  bill  making  appropriations  for  five  diplomatic 
missions  to  the  south,  are  strong  and  clear  indications  of  the  disposition 
of  the  jmblic  mind  in  this  country.  Of  the  view  which  will  l)e  taken  of 
this  measure  as  well  1)y  Spain,  as  by  the  preponderating  Powers  of  the 
'  ■  •  •  Euroi>ean  Alliance,  we  are  yet  to  be  informed.  We  trust  it  will  not  l)e  con- 
sidered, even  by  the  British  Cabinet,  a  ra.sh  or  hasty  measure  at  this  time. 
Should  the  subject  })e  mentioned  to  you  by  the  ^[anpiis  of  Ijondonderry, 
you  will  remark  that  it  was  not  understood  or  intended  as  a  change  of 
policy  on  the  part  of  the  United  States,  nor  adopted  with  any  design  of 
turning  it  to  the  account  of  our  own  interests.  Possibly  no  one  of  the 
proposed  dij)lomatic  missions  may  Ih^  actually  sent  before  the  next  session 
of  Congress.     The  neutrality  of  the  I'niteil  States  towards  the  parties,  so 


§  36.]  RECOGNITION    OF    NEW    STATES.  89 

far  as  neutrality  can  be  said  to  exist,  where  there  is  scarcely  any  war,  will 
be  continued.  The  relations  of  the  United  States  witli  both  parties  will 
remain  the  same,  with  the  only  exception  of  an  interchange  of  official, 
instead  of  informal  political  and  commercial  agents."  (Mr.  Adams,  Sec. 
of  State,  to  ^Ir.  Rush,  minister  to  England,  Xo.  oO,  May  13,  1822,  MS. 
Inst,  to  U.  S.  ministers,  IX.  119.) 

That  the  recognition  by  the  United  States  of  the  independence  of  the  Spanish 
colonies  was  received  with  satisfaction  in  England,  and  was  "not  gener- 
ally unfavorably  received,"  see  Mr.  Gallatin,  minister  to  France,  to  Mr. 
Adams,  April  26,  1822,  Gallatin's  Writings,  II.  240. 

"Mr.  Anduaga,  I  observe,  casts  in  our  teeth  the  postponement  of  the  recog- 
nition of  Spanish  America  till  the  cession  of  Florida  was  secured,  and 
taking  that  step  immediately  after.  This  insinuation  will  be  so  readily 
embraced  Vjy  suspicious  minds,  and  {particularly  by  the  wily  cabinets  of 
Europe,  that  I  can  not  but  think  that  it  will  1x*  well  to  take  away  that 
pretext  against  us  by  an  expoHi'  brought  before  the  pul>lic  in  .wome  due 
form  in  which  our  conduct  would  be  seen  in  its  true  light.  An  historical 
view  of  the  early  sentiments  in  favor  of  our  neighbors  expressed  here, 
the  successive  steps  oj^enly  taken  manifesting  our  sympathy  with  their 
cause  and  our  anticipation  of  its  success,  more  especially  our  declaration 
of  neutrality  towards  the  contending  parties  as  engaged  in  a  civil,  not  an 
insurrectionary  war,  would  show  to  the  world  that  we  never  concealed 
the  principles  that  governed  us,  nor  the  policy  which  terminated  in  the 
decisive  step  la«t  taken."  (Mr.  Madison  to  Mr.  Monroe,  May  6,  1822, 
Madison's  Writings,  III.  267.) 

"While  Spain  maintained  a  doubtful  contest  with  arms  to  recover 
her  dominion,  it  was  regarded  as  a  civil  war.  When  that  contest 
became  so  manifestly  desperate  that  Spanish  viceroys,  governors,  and 
captain-generals  themselves  concluded  treaties  with  the  insurgents,  vir- 
tually acknowledging  their  independence,  the  United  States  f  rankh'  and 
unreservedly  recognized  the  fact,  without  making  their  acknowledg- 
ment the  price  of  any  favor  to  themselves,  and  although  at  the  hazard 
of  incurring  the  di.spleasure  of  Spain.  In  this  measure  they  have 
taken  the  lead  of  the  whole  civilized  world;  for  although  the  Portu- 
guese-Brazilian Government  had  a  few  months  before  recognized  the 
revolutionary  government  of  Buenos  Ayres,  it  was  at  a  moment  when 
a  projected  declaration  of  its  own  independence  made  the  question 
substantialh'  their  own  cause,  and  it  was  presented  as  an  equivalent 
for  a  reciprocal  recognition  of  their  own  nuich  more  questionable 
right  to  the  eastern  shore  of  La  Plata." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Anderson,  minister  to  Colombia,  May  27, 
1823,  :MS.  Inst,  to  U.  S.  Ministers,  IX.  274,  282,  283. 

In  the  course  of  the  same  instruction,  Mr.  Adams  observed: 
"So  long  as  a  contest  of  arms,  with  a  rational  or  even  remote  prospect  of 
eventual  success,  was  maintained  by  Spain,  the  United  States  could  not 
recognize  the  independence  of  the  colonies  as  existing  di'  J'urlo  without 
trespassing  on  their  duties  to  Spain  l)y  assuming  as  decide<l  that  which 
was  precisely  the  question  of  the  war."     (Id.,  276,  277.) 


90  STATES :    RECOGNITION    AND    CONTINUITY.  [§  36. 

••Oil  the  17th  of  June.  1822,  Mr.  Manuel  Torres  was  received  by 
Eepubiic  of  Coiom-  ^^^^  President  of  the  United  States  as  charge  d'affaires 

bia— New  Gran-  from  the   Republic  of   Colombia,  and  the  immediate 

ad  a.    Ecuador,  consequence  of  our  recog^nition  was  the  admission  of 

Venezuela.  ^^^  vessels  of  the  South  American  nations,  under  their 

own  colors,   into    the  pc^rts   of   the    principal   maritime    nations   of 
Europe."'" 

At  the  time  of  its  recognition,  the  Republic  of  Colombia  consisted 
of  what  afterwards  became  the  independent  States  of  New  Granada, 
Ecuador,  and  Venezuela. 

Venezuehi  was  formalh'  recognized  by  the  United  States  as  an  inde- 
pendent state  by  the  issuance  of  an  exequatur  to  Mr.  Nicholas  D.  C. 
Moller.  as  Yenezuehm  consul  at  New  York,  Februarv  25, 1835.* 

New  (xranada  was  recognized  by  the  issuance  of  an  exequatur  to  a 
New  Granadian  consul-general  on  September  18, 1835. 

Ecu>\d()r.  by  the  appointment  of  Mr.  J.  C.  Pickett,  then  United 
States  charge  d'affaires  to  the  Peru-Bolivian  Confederation,  to  nego- 
tiate a  treaty  of  commerce  and  navigation,  June  15,  1838.'' 

'•It  does  not  appear  from  anything  in  this  office,  that  an}'  Govern- 
ment under  the  title  of  that  of  *The  United  Provinces 
Buenos  Ayres:  also,  ^,^'  j^j,^  ^^^  Plata'  was  ever  acknowledged  by  this.     It 
ruguay,      ara-  ^^^_^^^  ^^^^  ^^.^^j  ^^  state,  however,  that  the  same  Govern- 

guay.  •  ,  ,. 

ment,  under  the  title  of  'The  Government  of  Buenos 

Ayres.'  was  first  formally  acknowledged  or  recognized  by  the  Govern- 


"  Mr.  A(laiii.<,  Sec.  nf  State,  to  Mr.  Andei-Hon,  minister  to  Colombia,  May  27,  1823, 
MS.  In.<t.  to  r.  S.  ^[inisterj^,  IX.  274,  283. 

Mr.  Adams,  in  a  letter  to  Don  Pedro  Glial,  Secretary  of  State  for  Foreign  Affairs 
of  the  Republic  of  Colombia,  of  July  2,  1822,  stated  that  Colonel  Charles  S.  Todd,  the 
bearer  of  the  letter,  would  communicate  to  him  documents  exhibiting  both  the  rec- 
ognition by  the  I'nited  States  of  the  independence  of  the  Republic  and  the  disposi- 
tion of  the  f(jrmer  j>o\ver  to  enter  into  friendly  relations.  With  this  view,  said  ^Ir. 
Adams,  the  President  had  received  Mr.  Torres  in  the  capacity  of  charge  d'affaires, 
with  which  he  was  clothed  by  his  (iovernment,  and  would  at  an  early  day  appoint 
someone  with  a  diploinatir  character  to  represent  the  United  States  at  the  seat  of 
the  Colombian  (iovernment.      (MS.  Notes  to  For.  Leg.  LII.  lOo.) 

"In  the  recognition  of  the  in<lependence  of  the  sev'eral  governments  of  South 
America  it  is  not,"  .<ai(l  Mr.  Adams,  ''his  [the  President's]  intention,  by  discrimi- 
nating between  them,  with  regard  to  time,  to  admit  any  claim  to  prior  recognition, 
in  favor  of  any  one  over  the  other.''  (Mr.  Adams,  Sec.  of  State,  to  Mr.  De  Forest, 
May  23,  1S22,  MS.  Notes  to  For.  Leg.  III.  104.) 

''Mr.  Mi-Lane,  Sec.  of  State,  in  an  instruction  to  Mr.  Williamson,  Nov.  28,  1833, 
in  relation  to  the  claim  of  Jacob  Idler  against  Venezuela  for  supplies  furnished  her 
during  her  war  of  in<lependence,  .-^aid  it  was  the  President's  wish  that  he  should 
afford  tlie  claimant  all  the  aid  in  his  jtower  ''  without  committing  this  Government 
to  a  recognition  of  tiiat  of  Venezuela."  (  Brief  of  Mr.  Ashton,  counsel  for  the  United 
States,  in  the  ca.«e  of  Idler  r.  Venezui'la,  commission  under  the  convention  of  Dec. 
o,  ISS.'S,  i».  7.) 

'Sen.  Doc.  40,  ")4  Cong.  2  Se.s».  12,  13. 


§  36.]  RECOGNITION    OF    NEW    STATES.  91 

ment  of  the  United  States  *  *  *  In- the  appointment  of  Mr.  Csesar 
Rodney,  on  the  27th  January,  1823,  as  minister  plenipotentiary  of  the 
United  States  to  that  Government,  tho'  others  had  before  held  informal 
appointments  under  this  Govermuent,  to  watch  over  the  commercial 
interests  of  the  citizens  of  the  United  States,  resorting  thither  from 
time  to  time."" 

The  Government  of  Buenos  Ayres  at  one  time  claimed  the  sover- 
eignty of  both  Uruguay  and  Paraguay. 

Uruguay  was  recognized  by  the  United  States  as  an  independent 
State  January  25,  1836,  by  the  issuance  of  an  exequatur  to  Mr.  John 
Darby,  as  consul-general  at  New  York. 

Paraguay  was  recognized  as  separate  and  independent  April  27,  1852, 
bv  the  issuance  to  Mr.  John  S.  Pendleton,  of  Virginia,  charge  d'affaires 
at  Buenos  Ayres,  of  a  full  power  to  negotiate  a  treaty  of  conuuerce 
with  the  Paraguayan  Government.'^ 

"Mr.  Henan  Allen  was  appointed  minister  plenipotentiary  of  the 
Ignited  States  to  Chile  on  the  27th  January,  1823,  and 
arrived  at  Santiago  de  Chile  on  the  lOth  of  April,  1824, 
when  he  entered  upon  the  duties  of  his  mission." 

Mr.  Livingston,  Sec.  of  State,  to  Mr.  Wayne,   Feb.  25,  18.33,  2.5  MS.  Dom. 
I^t.  258. 

Mexico  was  formally  recognized  on  the  same  day  as  Buenos  Avres 

.  (Argentine  Republic)  and  Chile,,  viz,  January  27,  1823, 

by  the  appointment  of  a  minister  to  that  country. 

The  independence  of  Brazil  was  declared  September  7,  1822,  and  on 

the  1st  of    the  ensuing  December  Pedro  1.,  son  of 

John  VI.   of  Portugal,   was  proclaimed  as  emperor. 

The  independence  of  the  Empire  was  recognized  ))y  the  President's 


"Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Berrien,  Sept.  24,  18.30,  23  MS.  Dom.  Let. 
4S2. 

Tlie  in.-^tructions  of  ^Ir.  C'jesar  A.  Rodney,  as  minister  to  Buenos  Ayres,  bearing 
(late  May  17,  1823,  are  recorded  in  MS.  Inst,  to  V.  S.  ministers,  IX.  2.50. 

'^Sen.  Doc.  40,  .54  Cong.  2  sess.  12,  13. 

"  You  are  aware  that  it  is  the  settled  policy  of  the  United  States  to  recognize  the 
independence  of  all  governments  which  have  manifested  to  the  world  that  they  are 
de  facto  independent.  This  duty  has  been  eagerly  performed  towards  our  sister 
Republics  on  this  continent.  The  information  already  in  our  possession,  especially 
that  which  has  been  communicated  by  Mr.  Lisboa,  would  justif}-  this  Government 
in  promptly  acknowledging  the  independence  of  Paraguay.  Xotwithstanding  this 
inf(jrmation  the  President  lias  determined  to  suspend  action  upon  this  subject  for 
the  present,  purely  from  regard  to  the  Argentine  Republic  and  in  consideration  of 
the  heroic  struggle  which  it  is  now  maintaining  against  the  armed  intervention  of 
Great  Britain  and  Frani'C  in  the  concerns  of  the  Republics  on  the  La  Plata  and  its 
tributaries.  He  could  not  give  a  more  striking  proof  than  this  of  his  friendship  for 
the  Argentine  Republic."  (Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Harris,  V.  S.  min- 
ister, No.  1,  March  30,  184(),  MS.  Inst.  Arg.  Republic,  XV.  19,21,22.) 


92  states:  recognition  and  continuity.  [§  36. 

reooption  of  Sonhor  Kobello  iis  char^'o  <rjiftairos  to  the  United  States 
May  '2iK  IS^-t. 

St'u.  Doc.  40,  r>4  ("nnir.  2  sess.  4:  ^IS.  Notes  to  For.  I^j;.  III.  178;  Adams' 
Memoirs,  VI.  .354,  8a.^. 

"The  I'liited  States  tirst  aekiiowledjred  the  independence  of  Brazil.  The 
political  form  of  that  (Government  occasioned  no  hesitation  in  its  recogni- 
tion by  ours."  (Mr.  Forsyth.  Sec.  of  State,  to  Mr.  Hunter,  Xov.  29,  1836. 
MS.  Inst,  to  Brazil,  XV.  84,  88.) 

'•The  Federation  of  Central  American  States  was  recognized  by  the 

President's  reception  of  Mr.  Canaz  as  envo}'  extraor- 

Central   American      i .  i        •    •   i.  i      •       4.      ^  •  *  i.    1     ^  o  ^  < 

dinary  and  minister  plenipotentiary  August  4.  1824. 

Prior  to  that  date  two  commissioners,  diplomatic  in 

character,  had  visited  Washington.  ))ut  the  records  of  the  Department 

[of  State]  do  not  disclose  any  act  of  the  Government  of  the  United 

States  involving  recognition  or  the  intention  to  recognize.     (See  Notes 

to  Legations.  :MSS..  vol.  3.  p.  184.) 

"This  Federation  consists  of  the  States  of  Honduras,  Guatemala, 

Nicaragua.  Uosta  Pica,  and  Salvador." 

Report  of  Mr.  Allen,  Chief  of  Bureau  of  Rolls  and  Library,  Jan.  1,  1897,  Sen. 

Doc.  40,  54  Cong.  2  sess.  o. 
In  this  rejiort  the  time  and  manner  of  the  formal  recognition  by  the  United 

States  of  the  various  mend)ers  of  the  Federation  as  separate  State.s  are 

given  as  follows: 
(Guatemala,  Ajiril  5,  1844,  by  the  i.^suance  of  an  exequatur  to  a  (Tuatemalan 

consul-general. 
Salvador,  May  1,  1849,  by  the  issuance  of  a  full  power  and  letter  of  credence 

to  Mr.  E.  (ieorge  S(iuier,  of  New  York,  charge  d'affaires  to  (Guatemala,  to 

negotiate  a  treaty  with  Salvador. 
Nicaragua,  Dec.  24,  1849,  by  the  President's  recej^tion  of  Mr.  Eduardo  Comachc 

as  Xicaraguan  charge  d'affaires. 
Costa  Rica,  March  24,  \Hrt],  1)y  the  President's  recei)tion  of  Mr.  Felii>e  Molina 

as  Costa  Rican  charge  d'affaires. 
Honduras,   April   IS,   is.-i."!.   )iy  the  dispatch  of  Mr.  Solon   Borland  as  envoy 

t-xtraordinary  and    minister   plenipotentiary   to    Honduras,   Costa    Rica, 

Nicaragua,  and  .""Salvador. 

The  independence  of  Peru  was  rtn-ognized  l»y  the  United  States  by 
the  a]:»})<)intment  of  Mr.  .lames  Uoolev,  of  Pennsyl- 
\ania.  as  charge  d'atlaires.  May  2,  182*). 

Sen.  Doc.  40,  54  Cong.  2  .-e.<s.  13. 

The  Peni-I>olivian  Confetlcration  was  recognized  June  9.  18.38,  by  tlie  appoint- 
ment of  Mr.  J.  C.  Pickett,  of  Kentucky,  as  charge  d'affaires. 

Bolivia  was  recognized  as  a  separate  State  May  30,  1848,  by  the  appointment 
of  -Mr.  .John  .\i>pleton,  of  ^hiine,  as  charge  d'affaires. 

"The  independence  of  Huenos  Ayr(>s.  Colom))ia,  and  Mexico  was 

recognized  bv  England  earlv  in  18:^,5.     The  recognition 

British  recognition  ^^^  fj^-^^^  ^^..^^  postponed  Ix'cause  of  the  instability  of  its 

— Buenos  Ayres.   .  ,  A   •  n      ■      ■       ,^   .   .   ,    ^^ 

Colombia, Mexico,  •"ternal  condition.      Both  the  British  Government  and 

the  opposition  were  at  one  on  the  (juestion  of  principle. 


§  36.]  EKCOGNITION    OF    NEW    STATES.  93 

The  words  of  Lord  Liverpool  may  l)e  quoted  to  .show  the  views  of  Mr. 
Canning,  of  Lord  Lansdowne,  and  of  Sir  James  ^Mackintosh,  as  well 
as  of  himself.  *  He  had  no  diffieultv,'  he  said.  '  in  declaring  what  had 
been  his  conviction  during  the  years  that  the  struggle  had  been  going 
on  between  Spain  and  the  South  American  provinces — that  there  was 
no  right  while  the  contest  was  actually  going  on.  *  *  *  Xhe  ques- 
tion ought  to  be^was  the  contest  going  on  t  He,  for  one,  could  not 
reconcile  it  to  his  mind  to  take  an}'  such  step  so  long  as  the  struggle 
in  arms  continued  undecided.  And  while  he  made  that  declaration  he 
meant  that  it  should  be  a  honafide  contest!' " 

"•  Assuming  that  the  recognition  of  the  Spanish-American  Republics 
by  the  United  States  and  England  may  be  taken  as  a  typical  example 
of  recognition  given  upon  unimpeachable  grounds,  and  bearing  in 
mind  the  principle  that  recognition  can  not  be  withheld  when  it  has 
been  earned,  it  may  be  said  generally  that — 

"  1.  Definitive  independence  can  not  be  held  to  be  established,  and 
recognition  is  consequently  not  legitimate,  so  long  as  a  substantial 
struggle  is  being  maintained  by  the  formerh'  sovereign  state  for  the 
recovery  of  its  authority;  and  that 

"  2.  A  mere  pretension  on  the  part  of  the  formerly  sovereign  state, 
or  a  struggle  so  inadequate  as  to  ofi'er  no  reasonal)le  ground  for  sup- 
posing that  success  may  ultimateh'  be  obtained,  is  not  enough  to  keep 
alive  the  rights  of  the  state,  and  so  to  prevent  foreign  countries  from 
falling  under  an  obligation  to  recognize  as  a  state  the  communit}^ 
claiming  to  have  become  one."' 
Hall,  Int.  Law,  4th  eel.  90-93. 

"In  considering  that  war  (between   Spain  and  her  colonies),  as  in 
considering  all  others,  we  should  look  back  upon  the 
Good  offices,  Amer-   ^^^^^^  deliberatelv  survev  its   present   condition,  and 
ican    and    Euro-         ,  . ,.  '  -i  ,  '  ,  .  ,•       i 

«»o^  ™,tv  o„o^„   endc^avor,  ii  vjossible,  to  catch  a  view  oi  what  is  to 
pean,  witn  Spam.  . 

come.  With  respect  to  the  first  ))ranch  of  the  subject, 
it  is.  perhaps,  of  the  least  practical  importance.  No  statesman  can 
have  contemplated  the  colonial  relations  of  Europe  and  continental 
America  without  foreseeing  that  the  time  must  come  when  thej'  would 
cease.  That  time  might  have  been  retarded  or  accelerated,  but  come 
it  must  in  the  great  march  of  human  events.  An  attempt  of  the  British 
Parliament  to  tax  without  their  consent  the  former  British  colonies, 
now  these  United  States,  produced  the  war  of  our  Kevolution,  and  led 
to  the  establishment  of  that  independence  and  freedom  which  we  now 
so  justly  prize.  Moderation  and  forbearance  on  the  part  of  Great 
Britain  might  have  postponed,  but  could  not  have  prevented,  our  ulti- 
mate separation.  The  attempt  of  Bonaparte  to  subvert  the  ancient 
d3-nasty  of  Spain,  and  to  place  on  its  throne  a  member  of  his  own 
family,  iio  doubt  hastened  the  indei)endence  of  the  Spanish  colonies. 
If  he  had  not  been  urged  by  his  ambition  to  the  conquest  of  the  pen- 


94  states:  recognitiok  and  continuity.  [§  36. 

insula,  those  colonies^  for  a  long  time  to  come,  might  have  coutinued 
quietly  to  submit  to  the  parental  sway.  But  they  must  have  inevitably 
thrown  it  off.  sooner  or  later.  AVe  may  imagine  that  a  vast  continent, 
uninhabited  or  thinly  peopled  l)y  a  savage  and  untutored  race,  maybe 
governed  by  a  remote  country,  blessed  with  the  lights  and  possessed 
of  the  power  of  civilization,  but  it  is  aV)surd  to  suppose  that  this  same 
continent,  in  extent  twenty  times  greater  than  that  of  the  parent 
country,  and  doubling  it  in  a  population  e(|ually  civilized,  should  not 
be  able,  when  it  chooses  to  make  the  effort,  to  cast  off  the  distant 
authority.  AVhen  the  epoch  of  separation  between  a  parent  state  and 
its  colony,  from  whatever  cause,  arrives,  the  struggle  for  self-govern- 
ment on  the  one  hand,  and  for  the  preservation  of  power  on  the  other, 
produces  nuitual  exasperation  and  leads  to  a  most  embittered  and 
ferocious  war.  It  is  then  that  it  l)ecomes  the  duty  of  third  powers  to 
interpose  their  humane  offices,  and  calm  the  passions  and  enlighten 
the  counsels  of  the  parties.  And  the  necessity  of  their  efforts  is  great- 
est with  the  parent  country,  whose  pride  and  whose  wealth  and  power, 
swelled  by  the  colonial  contributions,  create  the  most  repugnance  to  an 
acquiescence  in  a  severance  which  has  been  ordained  by  Providence." 

Mr.  Clay,  Sec.  of  State.  t.>  :Mr.  Middk-ton,  minister  to  Russia.  3Iay  10,  1825, 
:MS.  Inst,  to  V.  S.  Ministers.  X.  ;«l-2:  Br.  and  For.  State  Pai>ers  (1825-1826), 
XIII.  403. 

See  also  Mei?sa«re  of  President  J.  Q.  Adams,  Feb.  1,  1826,  Am.  State  Papers, 
V.  794,  relative  to  the  intervention  of  foreign  governments  to  induce  Spain 
to  acknowledge  the  indei>endence  of  the  Ameucan  governments.  Thi>i 
document  comprises  d  i  an  instruction  of  Mr.  Clay  to  Mr.  A.  H.  Everett, 
April  27,  1S25,  to  urge  recognition  upon  Spain:  (  2  I  a  report,  Sept.  25,  1825, 
of  a  conversation  on  the  subject  between  ^Ir.  Everett  and  Mr.  Zea,  the 
Spanish  Minister  <il  State;  (3)  a  rejjort.  Oct.  20,  1825.  of  another  conver- 
sation, in  wliicii  .Mr.  Zt-a  iiniuired  as  to  the  i-onnnnnicatiims  made  l)y  the 
United  States  to  Russia,  lommented  on  the  British  and  other  offers  of 
mediation,  ami  <le(Unvd  the  resolution  of  the  King  to  reject  ail  offers  that 
contemjilated  tlie  acknowle<lgnient  of  inde{>endence. 

In  conformity  with  the  views  c.\])ress(Ml  l»y  Mr.  Clay  in  the  forego- 
ing extnict.  the  I  nited  States  sought.  l)v  direct  representations,  as 
well  as  by  the  coimst'ls  which  it  solicited  friendly  European  govern- 
ments to  tender,  to  induce  Spain  to  recognize  the  independence  of 
^lexico  and  of  the  Central  and  South  American  governments.  The 
reasons  for  this  step  were  elaborately  presented  in  a  note  addressed 
])y  Mr.  Alexander  H.  Everett,  then  United  States  minister  at  Madrid, 
to  the  Duke  del  Infaiitado.  principal  secretary  of  state  for  foreign 
affairs.  Jamiary  :^<>.  1S'J*3.  In  the  coui'se  of  this  note  Mr.  Everett, 
referring  to  the  great  change  in  the  situation  of  the  Spanish-American 
governments  as  indicated  by  the  Panama  Congress,  said:  ""  This  change 
in  their  position  is  evidently  one  of  vast  consecjuence.  It  calls  impe- 
riously  upon  the  Spanish  (iovcrinucnt   to  consider  well  the  system 


§  36.]  RECOGNITION    OF    NEW    STATES.  95 

upon  which  it  i.s  now  proceeding-,  and  to  examine  anew"  the  whole  .sub- 
ject of  it.s  relations  with  these  states.  It  has  also  been  thought,  by 
the  Government  of  the  United  States,  that  the  occurrence  of  this 
remarka})le  event  furnishes  an  occasion  upon  which  the  neutral  and 
friendly  powers  might,  with  propriety,  renew  their  good  offices  in 
attempts  to  bring  about  a  reconciliation  between  the  parties  to  the 
war.  They  have  been  induced  b}-  this  motive  to  conmiunicate  their 
opinions  and  their  wishes  to  His  Majesty's  ministers  in  a  more  formal 
manner  at  this  time  than  they  have  hitherto  employed,  and  to  invite 
the  leading  powers  of  Europe  to  concur  with  them,  as  far  as  they 
might  think  it  expedient,  in  the  same  great  and  benevolent  purpose. 
France  and  Portugal  have  lately  led  the  way  in  a  course  of  proceeding 
similar  to  that  which  is  now  recommended  to  His  Catholic  Majesty.  It 
only  remains  for  the  King  to  give  one  signal  proof  of  magnanimity 
and  wisdom  in  order  to  complete  the  pacification  of  the  whole  American 
continent."" 

In  1830  Mr.  Van  Ness,  when  sent  as  minister  to  Spain,  was  enjoined 
to  pursue  the  course  which  had  been  pointed  out  to  several  of  his  prede- 
cessors, by  availing  himself  of  "ever}'  fit  opportunity,"  so  far  as  it  might 
be  done  without  exciting  jealousy  and  irritation,  to  impress  upon  the 
Spanish  Government  the  expediency  of  recognizing  the  independence 
of  Spain's  former  American  colonies.'^  Mr.  Van  Ness  is  also  advised 
that  the  diplomatic  representative  of  Mexico  in  Washington  had  just 
stated  in  an  official  communication  that  the  British  Government  had 
informed  that  of  Mexico  that  it  had  taken  measures  to  induce  the 
Spanish  Government  by  friendh"  advice  and  remonstrance  ''to  consent 
to  the  recognition  of  the  independence  of  the  South  American  States." 

In  the  autunm  of  l.s3-t  Mr.  Van  Ness  had  the  satisfaction  of  inform- 
ing his  Government  that,  as  the  result  of  its  good 
Consent  of  Spain  to  offices,  Spain  was  ready  to  enter  into  negotiations  with 

t  d      f    u   t  d  ^^^  Spanish-American  states  with  a  view  to  recognize 

states.  their  independence.     A  copy  of  the  note  of  Mr.  Mar- 

tinez de  la  Kosa.  principal  secretary  of  state  for  for- 
eign affairs,  of  September  12, 1884,  in  which  this  decision  was  expressed, 
was  communicated  by  the  Department  of  State  to  each  of  the  repre- 
sentatives of  those  states  in  Washington,  with  the  statement  that  Mr. 
Van  Ness  would  be  instructed  to  afford  to  the  commissioners,  to  whom 
the  negotiations  might  be  entrusted,  such  good  offices  with  the  Spanish 
Government  as  might  be  desirable.  ]\Ir.  Van  Ness  was  instructed 
accordingly.  He  was  also  directed  to  guard  against  an}'  effort  on  the 
part  of  Spain  "'to  obtain,  in  consideration  of  her  acknowledgment  of 

^' Am.  8t.  Pap.,  For.  Rel.,  VI.  1007.  8ee  also  Br.  and  For.  State  Papers  (1828^1829), 
XVI.  856;  Adams'  Memoirs,  V.  488-491 ;  Phillimore,  Int.  Law,  3d  ed.,  II.  545. 

^Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Van  Ness,  No.  19,  Oct.  13,  1830,  :\IS.  Inst, 
to  U.  S.  Ministers,  XIII.  184. 


96  states:  recognition  and  continuity.  [§  37. 

the  iiidopendeiuo  of  her  former  colonics,  some  peculiar  advantages  in 
trade,  or  some  extraordinary  privileges  for  her  citizens,  to  the  preju- 
dice of  other  friendly  nations."  Such  an  arrangement,  it  was  declared, 
"would  be  peculiarly  prejudicial  to  the  interests  of  this  country,  and 
would  form  a  just  ground  of  complaint  against  those  whom  the  Gov- 
ernment of  the  United  States  was  the  lirst  to  recognize  in  their  inde- 
pendent character,  and  for  whose  prosperity  it  has  never  ceased  to 
manifest  the  most  friendly  and  anxious  concern." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Van  Xes.«,  No.  69,  Nov.  18,  1834,  MS.  Inst. 
Spain,  XIV.  52;  ^Ir.  Forsyth,  Sec.  of  State,  to  SeiiorDon  J.  M.  de  Castillo 
y  I^uzar,  Mexican  charge  d'affaires,  Nov.  10,  1834,  MS.  notes  to  Mex. 
Leg.  VI.  3;  .same  to  same,  Aug.  21,  1834,  Id.  VI.  1. 

10.  Texas. 

§  37. 

"The  right  of  one  independent  power  to  recognize  the  fact  of  the 
existence  of  a  new  power  about  to  assume  a  position 

por  0  r.  ay.  .^j^jq,^^,  ^y^^  nations  of  the  earth  is  incontestable.  It  is 
founded  upon  another  right,  that  which  appertains  to  every  sover- 
eignty, to  take  care  of  its  own  interests  by  establishing  and  culti- 
vating such  commercial  or  other  relations  with  the  new  power  as  may 
be  deemed  expedient.  Its  exercise  gives  no  just  ground  of  umbrage 
or  cause  of  war.  The  policy  which  has  hitherto  guided  the  Gov- 
ernment of  the  United  States  in  respect  to  new  powers  has  been  to 
act  on  the  fact  of  their  existence,  without  regard  to  their  origin, 
whether  that  has  been  by  the  subversion  of  a  pre-existing  Govern- 
ment or  ]»y  the  violent  or  voluntary  .separation  of  one  from  another 
part  of  a  common  nation.  In  ca.ses  where  an  old  and  established  nation 
has  thought  proper  to  change  the  form  of  its  Government,  the  United 
States,  conforming  to  the  rule  which  ha.s  ever  governed  their  conduct, 
of  strictly  a))staining  from  all  interference  with  the  domestic  concerns 
of  otht'r  states,  have  not  stopped  to  inquire  whether  the  new  Govern- 
ment has  ]>een  rightfully  adopted  or  not.  It  has  been  sufficient  for 
them  that  it  is.  in  fact,  the  Government  of  the  coimtry,  in  practical 
operation.  There  is.  however,  a  marked  difference  in  the  instances  of 
an  old  nation  which  has  altered  the  form  of  its  Government  and  a 
newly  organized  power  which  has  just  sprung  into  existence.  In  the 
former  ca.-^e  (such,  for  example,  as  was  that  of  France)  the  nation  had 
existed  for  ages  as  a  separate  and  independent  community.  It  is  a 
matter  of  history,  and  the  recognition  of  its  new  Governments  was 
not  necessary  to  denote  the  existence  of  the  nation;  but  with  respect 
to  new  }X)wers  the  recognition  of  their  Governments  comprehends, 
tir.«it.  an  acknowledgment  of  their  ability  to  exist  as  inde|3endent 
stiites.  and  secondly,  the  capacity  of  their  particular  Governments 


§  37.]  RECOGNITION    OF    NEW    STATES.  97 

to  perforin  the  duties  and  fulfill  the  obligations  towards  foreign  powers 
incident  to  their  new  condition.  Hence,  more  caution  and  deliberation 
are  necessary  in  considering  and  determining  the  question  of  the 
acknowledgment  of  a  new  power  than  that  of  the  new  Government  of 
an  old  power. 

"  The  Gov^ernment  of  the  United  States  has  ttiken  no  part  in  the 
contest  which  has  unhappih'  existed  between  Texas  and  Mexico.  It 
has  avowed  its  intention  and  taken  measures  to  maintain  a  strict  neu- 
trality towards  the  belligerents.  If  individual  citizens  of  the  United 
States,  impelled  by  sympathy  for  those  who  were  believed  to  be  strug- 
gling for  liberty  and  independence  against  oppression  and  tyranny, 
have  engaged  in  the  contest  it  has  been  without  the  authority  of  their 
Government.  On  the  contrary,  the  laws  which  have  been  hitherto 
found  necessary  or  expedient  to  prevent  citizens  of  the  United  States 

from  taking  part  in  foreign  wars  have  been  directed  to  be  enforced. 

*     *     * 

'"The  recognition  of  Texas  as  an  independent  power  may  be  made  by 
the  United  States  in  various  ways:  First,  by  treat}';  second,  b}*  the 
passage  of  a  law  regulating  commercial  intercourse  between  the  two 
powers;  third,  by  sending  a  diplomatic  agent  to  Texas  with  the  usual 
credentials;  or,  lastly,  by  the  Executive  receiving  and  accrediting  a 
diplomatic  representative  from  Texas,  which  would  ))e  a  recognition  as 
far  as  the  Executive  onh^  is  competent  to  make  it.  In  the  first  and 
third  modes  the  concurrence  of  the  Senate  in  its  executive  character 
would  be  necessary,  and  in  the  second  in  its  legislative  character. 

"The  Senate  alone,  without-  the  cooperation  of  some  other  branch 
of  the  Government,  is  not  competent  to  recognize  the  existence  of  any 
power. 

"The  President  of  the  United  States,  by  the  Constitution,  has  the 
charge  of  their  foreign  intercourse.  Regularly  he  ought  to  take  the 
initiative  in  the  acknowledgment  of  the  independence  of  any  new 
power,  but  in  this  case  he  has  not  yet  done  it,  for  reasons  which  he, 
without  doubt,  deems  sufficient.  If  in  any  instance  the  President 
should  be  tardy,  he  may  be  quickened  in  the  exercise  of  his  power  by 
the  expression  of  the  opinion,  or  by  other  acts,  of  one  or  both  branches 
of  Congress,  as  was  done  in  relation  to  the  republics  formed  out  of 
Spanish  America.  But  the  committee  do  not  think  that  on  this  occa- 
sion any  tardiness  is  justl}'  imputable  to  the  Executive.  About  three 
months  only  have  elapsed  since  the  establishment  of  an  independent 
Government  in  Texas,  and  it  is  not  unreasonable  to  wait  a  short  time 
to  see  what  its  operation  will  be,  and  especially  whether  it  will  afford 
those  guarantees  which  foreign  powers  have  a  right  to  expect  before 
they  institute  relations  with  it. 

"Taking  this  view  of  the  whole  matter,  the  committee  conclude  by 
recommending  to  the  Senate  the  adoption  of  the  following  resolution: 
H.  Doc.  551 7 


98  states:  recognition  and  continuity.  [§  37. 

'"Resolved,  That  the  independence  of  Texas  ought  to  be  acknowl- 
edged bv  the  United  States  whenever  satisfactoiy  information  shall 
be  received  that  it  has  in  successful  operation  a  civil  government, 
capable  of  performing  the  duties  and  fulfilling  the  obligations  of  an 
independent  power.'" 

Report  of  Mr.  Clay,  Committee  on  Foreign  Relatione,  Senate,  June  18,  1836, 
Sen.  E.  Doe.  406,  24  Cong.  1  sess. 

**No  steps  have  been  taken  by  the  PLxecutive  towards  the  acknowl- 
edgment of  the  independence  of  Texas,  and  the  whole 
President    Jackson's        i  •      .  u  i,  x,  \   £j.      •j.v,       ^  £      ^.t.  i 

--  T^      «,    subiect  would  have  been  left  without  further  remark 

Message.  Dec.  21,  ••         .  .  •  ^ 

1836  on  the  information  now  given  to  Congress,  were  it 

not  that  the  two  Houses  at  their  last  session,  acting 
separately,  passed  resolutions  'that  the  independence  of  Texas  ought 
to  be  acknowledged  b}-  the  United  States  whenever  satisfactory  infor- 
mation should  be  received  that  it  had  in  successful  operation  a  civil 
government  capable  of  performing  the  duties  and  fulfilling  the  obliga- 
tions of  an  independent  power.'  This  mark  of  interest  in  the  question 
of  the  independence  of  Texas,  and  indication  of  the  views  of  Congress, 
make  it  proper  that  I  should  somewhat  in  detail  present  the  considera- 
tions that  have  governed  the  Executive  in  continuing  to  occupv  the 
ground  previously  taken  in  the  contest  between  Mexico  and  Texas. 

■'The  acknowledgment  of  a  new  state  as  independent,  and  entitled  to 
a  place  in  the  family  of  nations,  is  at  all  times  an  act  of  great  delicacy 
and  responsibility,  but  more  especially  so  when  such  state  has  forcibly 
separated  itself  from  another  of  which  it  had  formed  an  integral  part, 
and  which  still  claims  dominion  over  it.  A  premature  recognition 
under  these  circumstances,  if  not  looked  upon  as  justifiable  cause  of 
war,  is  always  liable  to  be  regarded  as  a  proof  of  an  unfriendly  spirit 
to  one  of  the  contending  parties.  All  questions  relative  to  the  govern- 
ment of  foreign  nations,  whether  of  the  Old  or  New  World,  have  been 
treated  by  the  United  States  as  questions  of  fact  only,  and  our  prede- 
cessors have  cautioush'  abstained  from  deciding  upon  them  until  the 
clearest  evidence  was  in  their  possession  to  enable  them  not  only  to 
decide  correctly,  but  to  shield  their  decisions  from  every  unworthy  im- 
putation. In  all  the  contests  that  have  arisen  out  of  the  revolutions  of 
France,  out  of  the  disputes  relating  to  the  Crowns  of  Portugal  and 
Spain,  out  of  the  separation  of  the  American  possessions  of  both  from 
the  European  governments,  and  out  of  the  numerous  and  constant!}' 
occurring  struggles  for  dominion  in  Spanish  America,  so  wisely  con- 
sistent with  our  just  principles  has  been  the  action  of  our  Government 
that  Ave  have,  under  the  most  critical  circiuustances,  avoided  all  censure, 
and  encountered  no  other  evil  than  that  produced  l)v  a  transient  estrange- 
ment of  good  will  in  those  against  whom  we  have  been  by  force  of 
evidence  compelled  to  decide. 


§  37.]  RECOGNITION    OF    NEW    STATES.  99 

"It  has  thus  made  known  to  the  world  that  the  uniform  polic\'  and 
practice  of  the  United  States  is  to  avoid  all  interference  in  disputes 
which  merely'  relate  to  the  internal  government  of  other  nations,  and 
eventually  to  recognize  the  authority  of  the  prevailing  party  without 
reference  to  our  particular  interests  and  views  or  to  the  merits  of  the 
original  controversy.  Public  opinion  here  is  so  firmly  established  and 
well  understood  in  favor  of  this  policy  that  no  serious  disagreement  has 
ever  risen  among  ourselves  in  relation  to  it,  although  brought  under 
view  in  a  variety  of  forms,  and  at  periods  when  the  minds  of  the  people 
were  greatly  excited  b\'  the  agitation  of  topics  pureh'  domestic  in  their 
character.  Nor  has  an}'  deliberate  inquir}^  ever  been  instituted  in  Con- 
gress, or  in  an}'  of  our  legislative  bodies,  as  to  whom  belonged  the 
power  of  originalh'  recognizing  a  new  state.  A  power  the  exercise  of 
which  is  equivalent,  under  some  circumstances,  to  a  declaration  of  war; 
a  power  nowhere  especially  delegated,  and  only  granted  in  the  Consti- 
tution as  it  is  necessarily  involved  in  some  of  the  great  powers  given 
to  Congress — in  that  given  to  the  President  and  Senate  to  form  treaties 
with  foreign  powers,  and  to  appoint  embassadors  and  other  public 
ministers,  and  in  that  conferred  upon  the  President  to  receive  ministers 
from  foreign  nations. 

"In  the  preamble  to  the  resolution  of  the  House  of  Representa- 
tives, it  is  distinctly  intimated  that  the  expediency  of  recognizing  the 
independence  of  Texas  should  be  left  to  the  decision  of  Congress.  In 
this  view,  on  the  ground  of  expediency.  I  am  disposed  to  concur; 
and  do  not,  therefore,  consider  it  necessary  to  express  any  opinion  as 
to  the  strict  constitutional  right  of  the  Executive,  either  apart  from  or 
in  conjunction  Avith  the  Senate,  over  the  subject.  It  is  to  be  presumed 
that  on  no  future  occasion  will  a  dispute  arise,  as  none  has  heretofore 
occurred,  between  the  Executive  and  the  legislature  in  the  exercise  of  the 
power  of  recognition.  It  will  always  be  considered  consistent  with  the 
spirit  of  the  Constitution,  and  most  safe,  that  it  should  be  exercised, 
when  probably  leading  to  war,  with  a  previous  understanding  with  that 
V>ody  b}'  whom  war  can  alone  be  declared,  and  by  whom  all  the  provi- 
sions for  sustaining  its  perils  must  be  furnished.  Its  submission  to  Con- 
gress, which  represents  in  one  of  its  branches  the  States  of  the  Union, 
and  in  the  other  the  people  of  the  United  States,  where  there  may  be 
reasonable  ground  to  apprehend  so  grave  a  consequence,  would  cer- 
tainly afford  the  fullest  satisfaction  to  our  own  countr}',  and  a  perfect 
guarantee  to  all  other  nations  of  the  justice  and  prudence  of  the 
measures  which  might  be  adopted. 

"In  making  these  suggestions,  it  is  not  my  purpose  to  relieve  myself 
from  the  responsibility  of  expressing  my  own  opinions  of  the  course 
the  interests  of  our  country  prescribe,  and  its  honor  permits  us  to 
follow. 

'"It  is  scarcely  to  be  imagined  that  a  question  of  this  character  could 


100  r^TATES:    RECOGNITION    AND    CONTINCITY.  [§  37. 

be  presented,  in  relation  to  which  it  would  be  more  difficult  for  the 
United  States  to  avoid  exciting  the  suspicion  and  jealousy  of  other 
powers,  and  maintain  their  estiiblished  character  for  fair  and  impartial 
dealing.  But  on  this,  as  on  every  other  trying  occasion,  safety  is  to 
be  found  in  a  rigid  adherence  to  principle. 

••In  the  contest  between  Spain  and  the  revolted  colonies  we  stood 
aloof,  and  waited  not  only  uiitil  the  ability  of  the  new  states  to  protect 
themselves  was  fully  established,  but  until  the  danger  of  their  being 
again  subjugated  had  entirely  passed  away.  Then,  and  not  until  then, 
were  they  recognized.  Such  was  our  course  in  regiird  to  Mexico  her- 
self. The  same  policy  was  observed  in  all  the  disputes  growing  out 
of  the  separation  into  distinct  (Governments  of  those  Spanish-Amer- 
ican States,  who  began  or  carried  on  the  contest  with  the  parent  coun- 
try, united  under  one  form  of  goveriuiient.  We  acknowledged  the 
separate  independence  of  New  (irenada.  of  Venezuela,  and  of  Ecuador, 
only  after  their  independent  existence  was  no  longer  a  subject  of  dis- 
pute, or  was  actually  acquiesced  in  by  those  with  whom  they  had  been 
previously  united.  It  is  true  that  with  regard  to  Texas  the  civil 
authority  of  Mexico  has  been  expelled,  its  invading  army  defeated,  the 
chief  of  the  Republic  himself  captured,  and  all  present  power  to  con- 
trol the  newly  organized  (xovernment  of  Texas  annihilated  within  its 
contines.  But,  on  the  other  hand,  there  is.  in  appearance  at  least,  an 
inuiiense  disparity  of  physical  force  on  the  side  of  Texas,  The  Mexican 
Republic,  under  another  Executive,  is  rallying  its  forces  under  a  new 
leader,  and  menacing  a  fresh  invasion  to  recover  its  lost  dominion. 

••Upon  the  issue  of  this  threatened  invasion,  the  independence  of 
Texas  may  be  considered  as  suspended:  and  were  there  nothing  pecul- 
iar in  the  relative  situation  of  the  United  States  and  Texas,  ouracknowl 
edgment  of  its  independence  at  such  a  crisis  could  scarcely  be  regarded 
as  consistent  with  that  prudent  reserve  with  which  we  have  hitherto 
held  ourselves  l)ound  to  treat  all  similar  questions.  But  there  are  cir- 
cumstances in  the  ivlations  of  the  two  countries  which  require  us  to 
act  on  this  occasion  with  even  more  than  our  wonted  caution.  Texas 
was  once  claimed  as  a  part  of  our  property,  and  there  are  those  among 
our  citizens  who.  always  reluctant  to  abandon  that  claim,  caiuiot  but 
regard  with  solicitude  the  prospects  of  the  reunion  of  the  territory  to 
this  country.  A  large  portion  of  its  civilized  inhabitants  are  emigrants 
from  the  United  States,  speak  the  same  language  with  ourselves,  cher- 
ish the  same  principles,  political  and  religious,  and  arc  bound  to  many 
of  our  citizens  by  ties  of  friendshiji  and  kindi-ed  blocKl:  and.  more  than 
all.  it  is  known  that  the  people  of  that  country  have  instituted  the  same 
form  of  government  with  our  own.  and  hav«\  since  the  close  of  your 
last  session,  openly  resolved,  on  the  acknowledgment  by  us  of  their 
independence,  to  seek  admission  into  the  Union  as  one  of  the  Federal 
States.     This  last  circumstance  is  a  matter  of  peculiar  delicacj',  and 


UNIVERSITY  OF  CALIFORr<«A 

S  37.]  HECOamTlON    OF   KEW    STATES.  101 

forces  upon  us  considerations  of  the  gravest  character.  The  title  of 
I'exas  to  the  territory  she  claims  is  identified  with  her  independence; 
she  asks  us  to  acknowledge  that  title  to  the  territor^^  with  an  av^ow^ed 
design  to  treat  immediately  of  its  transfer  to  the  t'nited  States.  It 
})ecomes  us  to  beware  of  a  too  early  movement,  as  it  might  subject  us, 
however  unjustly,  to  the  imputation  of  seeking  to  establish  the  claim 
of  our  neighbors  to  a  territory,  with  a  view  to  its  subsequent  acquisi- 
tion by  ourselves.  Prudence,  therefore,  seems  to  dictate  that  we  should 
still  stand  aloof,  and  maintain  our  present  attitude,  if  not  until  Mexico 
itself,  or  one  of  the  great  foreign  powers,  shall  recognize  the  independ- 
ence of  the  new  Government,  at  least  until  the  lapse  of  time  or  the 
course  of  events  shall  ha^'e  proved  be^'ond  cavil  or  dispute  the  abilit}' 
of  the  people  of  that  country  to  maintain  their  separate  sovereignt}' 
and  to  uphold  the  Government  constituted  by  them.  Neither  of  the 
contending  parties  can  justly  complain  of  this  course.  B3'  pursuing  it, 
we  are  but  carrying  out  the  long-estaV)lished  policy  of  our  Government, 
a  polic}'  which  has  secured  to  us  respect  and  influence  abroad  and 
inspired  confidence  at  home." 

President  Jackson,  Texas  message,  Dec.  21,  1836. 

By  the  act  '"  making  appropriations  for  the  civil  and  diplomatic 
expenses  of  Government,'*  which  was  approved  by  the 

ppropna  ion   y    p^.p^jj^j^^  March   3,  1837,  provision  was  made  "for 
Congress.  ,  '  '    y 

the  outfit  and  salary  of  a  diplomatic  agent  to  be  sent 

to  the  Republic  of  Texas,  whenever  the  President  of  the  United  States 

may  i-eceive  satisfactory  evidence  that  Texas  is  an  independent  power, 

and  shall  deem  it  expedient  to  appoint  such  minister."" 

The  independence  of  Texas  was  recognized  March  7,  1837,  by  the 

appointment   of    Mr.    Alcee  La    Branche   as    charge 

■  d'affaires  to  that  Repu})lic.     More  than  two  months 

had  elapsed  when  his  commission  was  transmitted  to  him.^     By  his 

instructions,  which  were  not  sent  to  him  till  the  end  of  Jul}",  he  was 

directed,  on  his  presentation  to  the  President  of  Texas,  to  advert  in  a 

brief  oral  address  to  the  purposes  of  his  mission  and  to  assure  the 

President  of  the  desire  of  the  United  States  to  establish  the  relations 

})etween  the  two  countries  on  the  basis  of  mutual  ad\'antage.     He  was 

to  do  everything  in  his  power  to  cultivate  the  )>est  understanding  with 

Texas.    On  the  first  favorable  opportunity  he  was  to  present  the  claims 

of  citizens  of  the  United  States  who  had  suffered  injur}'  from  the 

Texan  Goverinnent  or  its  officials.     The  only  cases  of  that  description 

for  the  prosecution  of  which  the  aid  of  the  United  States  had  then  been 

solicitfxl  were  those  of  the  bri^  Pocket  and  the  brig  iJumngo.     The 


« 5  Stat.  163,  170. 

&Mr.  Foi-syth,  Sec.  .>f  State,  to  Mr.  La  Branclie,  .May  21,  1S37,  MS.  Inst,  to  Texas,  I.  1. 


102  states:  recognition  and  continuity.  [§  37. 

former,  which  sailed  from  New  Orleans  March  28,  1836,  for  Matamo- 
ros  was  taken  on  the  vo^'age  by  the  armed  schooner  Invincible^  sail- 
ing under  the  Texan  flag  and  commanded  by  one  Brown,  carried  to 
Galveston,  and  there,  with  her  cargo,  condemned  and  appropriated 
without  trial  by  persons  claiming  to  act  under  the  authority  of  Texas. 
The  Durangoyf^i^  seized  in  Matagorda  Baj'  March  22, 1836,  by  an  armed 
force  under  orders  of  John  A.  Wharton,  adjutant-general  of  Texas,  and 
Brown,  commander  of  the  Livincihh.  The  brig  was  abandoned  by  her 
master."  Numerous  instructions  were  afterwards  given  in  relation  to 
the  pursuit  of  Indians  by  the  Texans  into  the  United  States. 

''The  undersigned  *  *  *  has  had  the  honor  to  receive  the  note 
of  Mr.  J.  M.  de  Castillo  y  Lanzas,  charge  d'affaires  of 

®^  p  °t  exican  ^yj^^j^Q^  ^f  ^-jjg  g^jj  instant,  protesting  against  the 
appointment  b}'  the  late  P^xecutive  of  the  United 
States  of  a  diplomatic  agent  to  Texas. 

"Mr.  Castillo's  impression  as  to  the  incompatibilit}'  of  that  act  with 
the  views  of  the  late  Executive  on  the  subject  of  the  contest  in  Texas, 
as  disclosed  in  his  message  to  Congress,  must  have  been  removed  if  he 
had  reflected  on  the  circumstance  that  the  two  branches  of  the  legisla- 
tive department  of  the  Goverimaent,  to  which  the  subject  has  been 
referred  by  the  late  President,  concurred  as  to  its  propriet3^ 

"The  independence  of  other  nations  has  always  been  regarded  by  the 
United  States  as  a  question  of  fact  merely,  and  that  of  every  people  has 
been  invariably  recognized  by  them  whenever  the  actual  enjoyment  of 
it  was  accompanied  b}^  satisfactory  evidence  of  their  power  and  deter- 
mination permanently  and  effectually  to  maintain  it.  This  was  the 
course  pursued  by  the  United  States  in  acknowledging  the  independence 
of  Mexico  and  the  other  American  States,  formerly  under  the  dominion 
of  Spain.  The  United  States,  in  recognizing  Texas,  acted  in  perfect 
accordance  with  their  ordinary  and  settled  policy.  That  act,  however, 
did  not  proceed  from  any  unfriendly  spirit  towards  Mexico,  and  must 
not  be  regarded  as  indicative  of  a  disposition  to  interfere  in  the  contest 
between  her  and  Texas. 

"While  it  is  the  determination  of  the  Executive  to  do  ever3'thing 
within  the  scope  of  his  authority  to  maintain  the  neutrality  of  the 
United  States  with  respect  to  both  those  countries,  he  trusts  that  the 
recognition  of  Texas  will  not  ])e  allowed  by  Mexico  to  inspire  a  doubt 
of  his  hearty  desire  to  preserve  and  improve  the  relations  of  amity 
with  her,  so  far  as  this  can  be  done  consistenth'  with  the  rights  and 
honor  of  the  United  States. 

Mr.   Forsyth,   Sec.  of  State,  to  Mr.  Ca.«tillo,  Mardi  17,  1837,  MS.   Notes  to 
Mex.  I^g.  VI.  71. 


«Mr.  Foi-syth,  See.  of  State,  to  Mr.  La  Branche,  July  22,  1837,  MS.  Inst.,  Texas,  1. 1. 


§  38.]  RECOGNITION    OF    NEW    STATES.  103 

A  copy  of  this  note  was  sent  by  Mr.  Forsyth,  May  22,  1837,  to  Mr.  J.  M.  Ortiz 
Monasterio,  acting  minister  of  foreign  affairs  of  the  Republic  of  Mexico, 
who  had  on  the  31st  of  March  addressed  to  the  United  States  a  direct  pro- 
test against  the  recognition.     (MS.  Notes  to  the  Mex.  Leg.  VI.  77.) 

As  to  the  state  of  the  relations  between  the  United  States  and  Mexico  at  the 
time  of  the  recognition  of  Texas,  see  Int.  Arbitrations,  II.  1212-1215. 

The  action  of  the  United  States  in  recognizing  Texas  is  discussed  by  Sir  W. 
Vernon  Harcourt  as  a  precedent  for  the  position  ' '  that  recognition  is  not 
permissible  until  the  contest  is  won."     (Historicus,  19.) 

11.  Case  of  the  Confeder.\te  States.  , 
$^   38. 

"You  are,  of  course,  aware  that  the  election  last  November  resulted 

in  the  choice  of  Mr.  Abraham  Lincoln;  that  he  was 
Circularof Mr. Black.  .,  j-j   j.       n  xi      n         it  *     i.-  i  j. 

the  candiaate  oi  the  Kepublican  or  Antislavery  party; 

that  the  preceding  discussion   had    been  confined  almost  entirely  to 

topics  connected,  directly  or  indirectl}^,  with  the  subject  of   negro 

slavery;  that  every  Northern  State  cast  its  whole  electoral  vote  (except 

three  in  New  Jersey)  for  Mr.  Lincoln,  while  in  the  whole  South  the 

popular  sentiment  against  him  was  almost  absolutely  universal.     Some 

of  the  Southern  States,  immediately  after  the  election,  took  measures 

for  separating  themselves  from  the  Union,  and  others  soon  followed 

their  example.     Conventions   have   been  called   in    South   Carolina, 

Georgia,  Florida,  Alabama,  Mississippi,  Louisiana,  and  Texas,  and 

those  conventions,  in  all  except  the  last-named  State,   have   passed 

ordinances  declaring  their  secession  from  the  Federal  Government. 

A  congress,  composed  of   representatives  from   the   six  first-named 

States,  has  been  assembled  for  some  time  at  Montgomery,  Ala.     By 

this  ])ody  a  provisional  constitution  has  been  framed  for  what  it  st3des 

the  'Confederated  States  of  America.' 

"It  is  not  improbable  that  persons  claiming  to  represent  the  States 
which  have  thus  attempted  to  throw  off  their  Federal  obligations  will 
seek  a  recognition  of  their  independence  by  the  Emperor  of  Russia. 
In  the  event  of  such  an  effort  Ijeing  made,  3^ou  are  expected  by  the 
President  to  use  such  means  as  may  in  your  judgment  be  proper  and 
necessary  to  prevent  its  success. 

"The  reasons  set  forth  in  the  President's  message  at  the  opening  of 
the  present  session  of  Congress  in  support  of  his  opinion  that  the 
States  have  no  constitutional  power  to  secede  from  the  Union  are 
still  unanswered  and  are  believed  to  be  unanswerable.  The  grounds 
upon  which  they  have  attempted  to  justify  the  revolutionarj'  act  of 
severing  the  bonds  which  connect  them  with  their  sister  States  are 
regarded  as  wholly  insufficient.  This  Government  has  not  relinquished 
its  constitutional  jurisdiction  within  the  territory  of  those  States,  and 
does  not  desire  to  do  so. 


104  states:  recognition  and  continuity.  [§  38. 

"It  must  be  very  evident  that  it  is  the  right  of  this  Government  to 
ask  of  all  foreign  powers  that  the  latter  shall  take  no  steps  which  may 
tend  to  encourage  the  revolutionary  movement  of  the  seceding  States 
or  increase  the  danger  of  disaffection  in  those  which  still  remain  loyal. 
The  President  feels  assured  that  the  Government  of  the  Emperor  will 
not  do  anything  in  these  affairs  inconsistent  with  the  friendship  which 
this  Government  has  always  heretofore  experienced  from  him  and  his 
ancestors.  If  the  independence  of  the  '  Confederated  States '  should 
be  acknowledged  by  the  great  powers  of  Europe,  it  would  tend  to  dis- 
turb the  friendlv  relations,  diplomatic  and  commercial,  now  existing 
between  those  powers  and  the  United  States.  All  these  are  conse- 
quences which  the  court  of  the  Emperor  will  not  fail  to  see  are  adverse 
to  the  interests  of  Russia  as  well  as  to  those  of  this  country. 

"  Your  particular  knowledge  of  our  political  institutions  will  enable 
you  to  explain  satisfactorily  the  causes  of  our  present  domestic  troubles 
and  the  grounds  of  the  hope  still  entertained  that  entire  harmony  will 
soon  be  restored." 

Mr.  Black,  Sec.  of  State,  to  all  the  ministers  of  the  United  States,  Circular, 
Feb.  28,  1861,  Dip.  Cor.  1861,  31. 

"My  predecessor,  in  his  dispatch.  No.  10,  addressed  to  you  on  the 
Mr.  Seward's  Cir-  28th  of  February  last,  instructed  you  to  use  all  proper 
cuiar.  and   necessary  measures   to   prevent  the   success  of 

efforts  which  may  be  made  by  persons  claiming  to  represent  those 
States  of  this  Union,  in  whose  name  a  provisional  Government  has 
been  announced,  to  procure  a  recognition  of  their  independence  by 
the  Government  of  Spain. 

"I  am  now  instructed  by  the  President  of  the  United  States  to 
inform  you  that,  having  assumed  the  administration  of  the  Govern- 
ment in  pursuance  of  an  unquestioned  election  and  of  the  directions 
of  the  Constitution,  h(;  renews  the  injunction  which  I  have  mentioned, 
and  relies  upon  the  exercise  of  the  greatest  possible  diligence  and 
fidelity  on  j'our  part  to  counteract  and  i)revent  the  designs  of  those 
who  would  invoke  foreign  intervention  to  embarrass  or  overthrow 
the  Republic. 

"When  you  reflect  on  the  novelty  of  such  designs,  their  unpatriotic 
and  revolutionary  character,  and  the  long  train  of  evils  which  must 
follow  directly  or  consequentially  from  even  their  partial  or  tempo- 
rary success,  the  President  feels  assurc^d  that  you  will  ju.stiv  appreciate 
and  cordially  approve  the  caution  whicii  prompts  this  communication. 

"  I  transmit  herewith  a  copy  of  the  address  pronounced  by  the  Presi- 
dent on  taking  the  constitutional  oath  of  office.  It  sets  forth  clearly 
the  errors  of  the  misguided  partisans  who  are  seeking  to  dismember 
the  Union,  the  grounds  on  which  the  conduct  of  those  partisans  is 
disallowed,  and  also  the  general  policy  which  the  Government  will 


§  38.]  RECOGNITION    OF    NEW    STATES.  105 

pursue  with  a  view  to  the  preservation  of  domestic  peace  and  order, 
and  the  maintenance  and  preservation  of  the  Federal  Union. 

"You  will  lose  no  time  in  submitting  this  address  to  the  Spanish 
minster  of  foreign  affairs,  and  in  assuring  him  that  the  President  of 
the  United  States  entertains  a  full  confidence  in  the  speedy  restoration 
of  the  harmony  and  unity  of  the  Government  by  a  firm,  3et  just  and 
liberal,  bearing,  cooperating  with  the  deliVjerate  and  loyal  action  of  the 
American  people. 

''The  United  States  have  had  too  man}"  assurances  ana  manifesta- 
tions of  the  friendship  and  good  will  of  Her  Catholic  Majest}^  to  enter- 
tain an}'  doubt  that  these  considerations,  and  such  others  as  your  large 
experience  of  the  working  of  our  Federal  system  will  suggest,  will 
have  their  just  influence  with  her,  and  will  prevent  Her  Majesty's  Gov- 
ernment from  yielding  to  solicitations  to  intervene  in  any  unfriendl}' 
way  in  the  domestic  concerns  of  our  couutr}'." 

Mr.  Seward,  Sec.  of  State,  circular  to  all  the  ministers  of  the  United  States, 
March  9,  1861,  Dip.  Cor.  1861,  32;  MS.  Inst.  Spain. 

The  legation  of  the  United  States  at  Madrid  reported,  April  22,  1861,  the 
assurance  of  Mr.  Calderon  that  no  commissioners  from  the  Confederacy 
had  then  applied  for  its  recognition,  and  that  no  negotiations  for  that 
purpose  would  be  conducted  without  full  information  l)eing  given  to  the 
representative  of  the  United  States.  Mr.  Seward  pronounced  "this 
engagement  *  *  *  quite  satisfactory."  (Mr.  Seward,  Sec.  of  State, 
to  Mr.  Perry,  May  20,  1861,  [MS.  Inst.  Spain,  XV.  272.) 

"To  recognize  the  independence  of  a  new  state,  and  so  favor,  possi- 
bly determine,  its  admission  into  the  family  of  nations, 
Failure  of  Attempts  j^.  ^^^  highest  possible  exercise  of  sovereign  power, 

because  it  affects  in  anv  case  the  welfare  of  two  nations, 
tion.  .  -  _  ' 

and  often  the  peace  of  the  world.  In  the  European 
sj^stem  this  power  is  now  seldom  attempted  to  be  exercised  without 
invoking  a  consultation  or  congress  of  nations.  That  system  has  not 
been  extended  to  this  continent.  But  there  is  even  a  greater  necessity 
for  prudence  in  such  cases  in  regard  to  American  states  than  in  regard 
to  the  nations  of  Europe.  A  revolutionary  change  of  dynasty,  or 
even  a  disorganization  and  recombination  of  one  or  many  states,  there- 
fore, do  not  long  or  deeply  affect  the  general  interest  of  societ}', 
because  the  ways  of  trade  and  habits  of  society  remain  the  same. 
But  a  radical  change  effected  in  the  political  combinations  existing  on 
the  continent,  followed,  as  it  probably  would  be.  ))y  moral  convulsions 
of  incalculable  magnitude,  wotild  threaten  the  .stability  of  society 
throughout  the  world. 

"  Humanity  has,  indeed,  little  to  hope  for  if  it  shall,  in  this  age  of 
high  improvement,  be  decided  without  a  trial  that  the  principle  of 
international  law  which  regards  nations  as  moral  persons,  hound  so  to 
act  as  to  do  to  each  other  the  lea.st  injui-y  and  the  most  good,  is  merely 


106  states:  recognition  and  continuity.  [§  38. 

an  abstraction  too  relined  to  be  reduced  into  practice  b}-  the  enlight- 
ened nations  of  western  Europe.  Seen  in  the  light  of  this  principle, 
the  several  nations  of  the  earth  constitute  one  great  Federal  Republic. 
When  one  of  them  casts  its  suft'rages  for  the  admission  of  a  new  mem- 
ber into  that  Republic,  it  ought  to  act  under  a  profound  sense  of  moral 
obligation,  and  ])e  governed  by  considerations  as  pure,  disinterested, 
and  elevated  as  the  general  interest  of  society  and  the  advanceinent  of 
human  nature. 

"The  British  Empire  itself  is  an  aggregation  of  divers  communities 
which  cover  a  large  portion  of  the  earth  and  embrace  one-fifth  of  its 
entire  population.  Some,  at  least,  of  these  communities  are  held  to 
their  places  in  that  system  by  bonds  as  fragile  as  the  obligations  of  our 
own  Federal  Union.  The  strain  will  some  time  come  which  is  to  tr}' 
the  strength  of  these  bonds,  though  it  w^ill  be  of  a  different  kind  from 
that  which  is  trying  the  cords  of  our  confederation.  Would  it  be  wise 
for  Her  Majestv's  Government,  on  this  occasion,  to  set  a  dangerous 
precedent  or  provoke  retaliation  {  If  Scotland  and  Ireland  are  at  last 
reduced  to  quiet  contentment,  has  Great  Britain  no  dependency,  island, 
or  province  left  exposed  along  the  whole  circle  of  her  Empire,  from 
Gibraltar  through  the  West  Indies  and  Canada  till  it  begins  again  on 
the  southern  extremity  of  Africa  ? " 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  minister  to  England,  April  10,  1861, 
Dip.  Cor.  1861,  71,  79. 

Oct.  2.5,  1862,  Mr.  Seward  instructed  Mr.  Adams,  with  reference  to  a  negotiation 
then  pending  that  "if  the  extra-ofBcial  speeches  of  members  of  the  Cabi- 
net must  ])e  taken  ...  to  indicate  an  approaching  act  of  recognition 
of  the  insurgents  in  derogation  of  the  sovereignty  of  the  United  States, 
that  circumstance  will  most  necessarily  now  be  taken  into  considera- 
tion;" and  that  if  the  question  how  such  a  recognition  would  affect  the 
action  of  the  United  States  with  reference  to  the  negotiation  should  offi- 
cially arise,  ^Ir.  Adams  would  "in  that  case  state  promptly  and  without 
reserve  to  Earl  Russell,  that  all  negotiations  for  treaties  of  whatever  kind 
between  the  two  governments  will  be  discontinued  whenever  the  com- 
plete and  unbroken  sovereignty  of  the  American  Republic  shall  be  denied 
by  the  (Government  of  (ireat  Britain."     (MS.  Inst.  Gr.  Britain,  XVIII. 

:«i.) 

Sir  (i.  C.  Lewis  "  is  suppo.^ed  to  have  maintained  that  England  would  not  be 
entitled  to  recognize  the  S(nithern  Confederacy  until  the  Federalists  had 
])reviously  done  so.  But  the  secretary  of  war  is  far  too  accurate  a  thinker 
ajid  speaker  to  have  laid  down  any  such  doctrine.  The  rule  he  pro- 
pounded was  precisely  that  a<'ted  on  by  Mr.  Canning  in  the  case  of  the 
South  American  Repul>li(s,  viz,  that  where  a  doul)tful  and  bonn fide  strug- 
gle for  supremai-y  is  still  maintained  by  the  sovereign  power,  the  insur- 
gents jiuii  fioyr((iite  hello  can  not  be  said  to  have  established  a  de  fnvto 
independence."     (Historicus,  8.) 

A  rei>ort  in  1864  that  "a  person  in  Montreal"  had  in  his  possession  "a  recog- 
nition of  the  so-called  Southern  Confederacy  by  the  Pope  written  on 
l>archment,"  leil  Mr.  Seward,  though  he  considered  the  report  "incredi- 
ble in  it.«elf,  and  improl)able  from  circumstances  attending  it,"  to  instruct 
Mr.   Kin'g,  then  minister  to  the  Papal  States,   to  make    "a  categorical 


§  40.]  RECOGNITION    OF    NEW    STATES.  107 

inquiry"  of  Cardinal  Antonelli,  and  if,  "contrary  to  any  reasonable 
expectation,"  the  report  should  be  confirmed,  to  express  regret  at  the 
proceeding,  which  must  "compel  a  suspension  at  least  of  diplomatic 
intercourse,"  and  to  that  end  to  request  his  passports  and  retire  to  Switzer- 
land, or  such  other  quarter  as  he  might  think  proper,  and  there  await 
further  instructions.  The  reply  of  Mr.  King  "  satisfactorily  disposed  of 
the  rumors."  (Mr.  Seward,  Sec.  of  State,  to  Mr.  King,  July  19,  1864,  MS. 
Inst.  Papal  States,  I.  78;  same  to  same,  Sept.  21,  1864,  id.  80.) 

12.  Hayti  and  Saxto  Domixgo. 

§39. 

President  Lincoln,  in  his  annual  message  of  December  3,  1861, 
expressed  the  opinion  that  the  independence  of  Hayti  should  be  recog- 
nized, and  suggested  to  Congress  the  expediency  of  providing  for  a 
charge  d'affaires  to  that  country.  By  the  act  of  June  5.  1862,  the 
President  was  authorized  to  appoint  a  •'diplomatic  representative," 
who  was  to  be  accredited  as  commissioner  and  v-onsul-general. 

July  1'2,  1862,  Mr.  Benjamin  F.  Whidden  was  commissioned  to  act 
in  that  capacity. 

The  Dominican  Republic  was  recognized  September  IT,  1866,  on 
which  day  an  exequatur  was  issued  to  Mr.  J.  W.  Currier  as  Dominican 
consul  general  at  New  York. 

13.  Case  of  Cuba. 
>}  10. 

"Where  a  considerable  body  of  people,  who  have  attempted  to 
President  Grant's  ^^"^6  themselves  of  the  control  of  the  superior  gov- 
Message,  December  ernment,  have  reached  such  point  in  occupation  of 
7.  1875.  territory,  in  power,  and  in  general  organization  as  to 

constitute  in  fact  a  body  politic,  having  a  government  in  substance 
as  well  as  in  name,  possessed  of  the  elements  of  stability,  and 
equipped  with  the  machinery  for  the  administration  of  internal  polic}' 
and  the  execution  of  its  laws,  prepared  and  able  to  administer  justice 
at  home,  as  well  as  in  its  dealing  with  other  powers,  it  is  within  the 
province  of  those  other  powers  to  recognize  its  existence  as  a  new 
and  independent  nation.  In  such  cases  other  nations  simply  deal  with 
an  actually  existing  condition  of  things,  and  recognize  as  one  of  the 
powers  of  the  earth  that  ])ody  politic  which,  possessing  the  necessary 
elements,  has,  in  fact,  become  a  new  power.  In  a  word,  the  creation 
of  a  new  state  is  a  fact. 

"  To  establish  the  condition  of  things  essential  to  the  recognition 
of  this  fact,  there  must  be  a  people  occupying  a  known  territory, 
united  under  some  known  and  defined  form  of  government,  acknowl- 
edged by  those  subject  thereto,  in  which  the  functions  of  government 
are  administered  by  usual  methods,  competent  to  mete  out  justice  to 


'A 

108  states:  recognition  and  continuity.  [MO. 

citizen.s  and  strangers,  to  afford  remedies  for  public  and  for  private 
wront^^s,  and  able  to  assume  the  correlative  international  obligations 
and  capable  of  performino-  the  corresponding  international  duties 
resulting  from  its  acquisition  of  the  rights  of  sovereignty.  A  power 
should  exist  complete  in  its  organization,  ready  to  take  and  a])le  to 
maintain  its  place  among  the  nations  of  the  earth. 

"  While  conscious  that  the  insurrection  in  Cuba  has  shown  a  strength 
and  endurance  which  make  it  at  least  doubtful  whether  it  be  in  the 
power  of  Spain  to  subdue  it,  it  seems  unquestionable  that  no  such 
civil  organization  exists  w^iich  may  be  recognized  as  an  independent 
government  capable  of  performing  its  international  obligations  and 
entitled  to  be  treated  as  one  of  the  powers  of  the  earth.  A  I'ecogni- 
tion  under  such  circumstances  would  be  inconsistent  with  the  facts,  and 
would  compel  the  power  granting  it  soon  to  support  In-  force  the 
government  to  which  it  had  realh'  given  its  only  claim  to  existence. 
In  my  judgment,  the  United  States  should  adhere  to  the  policy  and 
the  principles  which  have  heretofore  been  its  sure  and  safe  guides  in 
like  contests  between  revolted  colonies  and  their  mother  country, 
and,  acting  only  upon  the  clearest  evidence,  should  avoid  any  possi- 
bility of  suspicion  or  of  imputation.'' 

President  Grant,  seventli  annual  message,  December  7,  1875. 

'•The  insurrection  in  Cuba  [that  broke  out  in  Februar}',  1895]  still 
continues,  with  all  its  perplexities.     *    *    *     If  Spain 
President  cieve-  j^.^^  ^^^^  ^,^^j.  j-eestablishcd  her  authoritv,  neither  have 
land  sMessage.  '  ii-'-i 

December  7, 1896.  ^"®  msui'gents  yet  made  good  their  title  to  be  re- 
garded as  an  independent  state.  Indeed,  as  the  con- 
test has  gone  on.  the  pretense  that  civil  government  exists  on  the  island, 
except  so  far  as  Spain  is  able  to  maintain  it,  has  been  practically  aban- 
doned. Spain  does  keep  on  foot  such  a  government,  more  or  less 
imperfectly,  in  the  large  towns  and  their  immediate  suburbs.  But, 
that  exception  being  made,  the  entire  country  is  either  given  over  to 
anarchy  or  is  subject  to  the  military  occupation  of  one  or  the  other 
party.  *  *  "  It  has  ])een  and  is-  now  sometimes  contended  that 
the  independence  of  the  insurgents  should  be  recognized.  But  imper- 
fect and  resti'icted  as  the  S})anish  government  of  the  island  may  be,  no 
other  exists  there,  uidess  the  will  of  the  military  officer  in  temporary 
connnand  of  a  particular  district  can  be  dignified  as  a  species  of 
governriicnt." 

I'residerit  ("leveland,  annual  message,  December  7,  1896. 

''Turning  to  the  (juestion  of  recognizing  at  this  time  the  independ- 
ence of  the  present  iiisurgent  goverinnent  in  Cuba,  we 
President  McKin-  |jjjj  ^.^^^  precedents  in  our  history  from  an  early  day. 
ey  8     ^^^J'^^'  Xhev  are  well  summed  up  in  President  Jackson's  mes- 

Apnl  11,  1898.  -  '■ 

sage  to  Congress.  December  21,  1836,  on  the  subject 


§  -10.]  RECOGNITION    OF    NEW    STATES.  109 

of  the  recognition  of  the  independence  of  Texas.  *  *  *  These  are 
the  words  of  the  resolute  and  patriotic  Jackson.  They  are  evidence 
that  the  United  States,  in  addition  to  the  test  imposed  by  public  law 
as  the  condition  of  the  recognition  of  independence  by  a  neutral  state 
(to  wit,  that  the  revolted  state  shall  'constitute  in  fact  a  body  politic, 
having  a  government  in  substance  as  well  as  in  name,  possessed  of  all 
the  elements  of  stability,'  and  forming  de  facto,  'if  left  to  itself,  a 
state  among  the  nations,  reasonably  capable  of  discharging  the  duties 
of  a  state'),  has  imposed  for  its  own  governance  in  dealing  with  cases 
like  these  the  further  condition  that  recognition  of  independent  state- 
hood is  not  due  to  a  revolted  dependency  until  the  danger  of  its  being 
again  subjugated  by  the  parent  state  has  entirely  passed  away. 

"This  extreme  test  was,  in  fact,  applied  in  the  case  of  Texas.  The 
Congress  to  whom  President  Jackson  referred  the  question  as  one 
'probably  leading  to  war,'  and  therefore  a  proper  subject  for  'a  pre- 
vious understanding  with  that  body  by  whom  war  can  alone  be  declared 
and  by  whom  all  the  provisions  for  sustaining  its  perils  must  be  fur- 
nished,' left  the  matter  of  the  recognition  of  Texas  to  the  discretion  of 
the  Executive,  providing  merely  for  the  sending  of  a  diplomatic  agent 
when  the  President  should  be  satisfied  that  the  Republic  of  Texas  had 
become  'an  independent  state.'  It  was  so  recognized  by  President 
Van  Buren,  who  commissioned  a  charge  d'affaires  March  Y,  1837,  after 
Mexico  had  abandoned  an  attempt  to  reconquer  the  Texan  territory, 
and  when  there  was  at  the  time  no  bona  fide  contest  going  on  between 
the  insurgent  province  and  its  former  sovereign. 

"1  said  in  mv  message  of  December  last,  'It  is  to  be  seriously  con- 
sidered whether  the  Cuban  insurrection  possesses  beyond  dispute  the 
attributes  of  statehood  which  alone  can  demand  the  recognition  of 
belligerency  in  its  favor.'  The  same  requirement  must  certainly  be  no 
less  seriously  considered  when  the  graver  issue  of  recognizing  inde- 
pendence is  in  question,  for  no  less  positive  test  can  be  applied  to  the 
greater  act  than  to  the  lesser;  while,  on  the  other  hand,  the  influences 
and  consequences  of  the  struggle  upon  the  internal  policy  of  the  recog- 
nizing state,  which  form  ipiportant  factors  when  the  recognition  of 
))elligerency  is  concerned,  are  secondary,  if  not  rightly  eliminable, 
factors  when  the  real  question  is  whether  the  community  claiming 
recognition  is  or  is  not  independent  beyond  peradventure. 

"Nor  from  the  standpoint  of  expediency  do  I  think  it  would  be  wise 
or  prudent  for  this  Government  to  recognize  at  the  present  time  the 
independence  of  the  so-called  Cuban  Republic.  Such  recognition  is 
not  necessary  in  order  to  enable  the  United  States  to  intervene  and 
pacify  the  island.  To  commit  this  country  now  to  the  recognition  of 
any  particular  government  in  Cuba  might  subject  us  to  eml)arrassing 
conditions  of  international  obligation  toward  the  organization  so 
recognized.  In  case  of  intervention  our  conduct  would  be  subject 
to  the  approval  or  disapproval  of  such  government.     We  would  be 


110  states:  recognition  and  continuity.  [§  41 

require  o  submit  to  its  direction  and  to  assume  to  it  the  mere  rela- 
tion of  a  friendly  ally. 

•'AVhen  it  shall  appear  hereafter  that  there  is  within  the  island  a 
oovernment  capable  of  performino-  the  duties  and  discharging  the 
functions  of  a  separate  nation,  and  having,  as  a  matter  of  fact,  the 
proper  forms  and  attributes  of  nationality,  such  government  can  l)e 
promptly  and  readily  recognized  and  the  relations  and  interests  of  the 
United  States  with  such  nation  adjusted." 

President  McKinley,  i^peeial  ine.<?afre.  April  11,  1S98,  H.  Ex.  Doc.  40.^,  55 
Cong.  2  sesjs.,  S-10.  "Both  the  legislative  and  executive  branches  of  the 
government  concurred  in  not  recognizing  the  existence  of  any  such  gov- 
ernment as  the  Republic  of  Cuba."  (Xeely  ;•.  Henkle  (1901),  180  U.  S. 
IW.  125.)- 

The  joint  resolution  of  Congress  approved  April  20,  1S98.  declaring 
the  people  of  Cuba  to  he  free  and  independent,  and 
Joint    Resolution,  (jipecting  the  President  to  use  the  Army  and  Navy  for 
^^^      '  the  purpose  of  causing  the  withdrawal  of  the  Govern- 

ment of  Spain  from  the  island,"  is  given  hereafter  in  the  chapter  on 
•'Intervention.'"  The  independent  government  of  the  Republic  of 
Cuba  was  formally  installed  May  11».  10<»l>. 

14.  KEcotixiTiox  OF  European  State.s. 

;;  41. 

By  the  congress  of  Vienna  Belgium  and  Holland  were  united,  the 
Belgic  provinces  being  placed  imder  the  sovereignty  of 
e  giiini.  ^j^^  King  of  the  Netherlands.''  In  September,  1830, 
the  Belgians  declared  their  independence.  October  14,  1831.  the 
plenipotentiaries  of  Austria,  France,  Great  Britain,  Prussia,  and 
Russia,  in  conference  at  London,  agreed  upon  twenty-four  articles  as 
a  basis  of  a  detinite  arrangement  between  the  two  countries.  This 
arrangement  was  not  accepted  by  the  Netherlands,  and  on  November 
15,  1S31.  the  plenipotentiaries  alcove  mentioned,  together  with  a  pleni- 
potentiary of  the  King  of  the  Belgians,  signed  at  London  a  treaty  by 
which  it  was  agreed  that  Belgium  should  form  "an  independent  and 
perpetually  neutral  State."*'  The  United  States  recognized  the  inde- 
pendence of  Belgiiuii  by  issuing  an  exequatur  to  the  Belgian  consul  at 
New  York  January  0.  1832. 

September  3(i.  1825.  the  British  Government  issued  a  proclamation 

of  neutralitv  with  reference  to  the  contest  in  which  the 
Greece.  ' 

Ottoman  Porte  and  Greece  had  l)een  "for  some  years 
past  «'ngaged.""''     By  a  protocol  signed  at  St.  Peterslnirg  March  23 

"  ZO  Stat.  78S. 

''Uertslet's  Map  of  Europe  by  Treaty,  I.  40,  o7.  24S. 

'  llertslet,  Map  <>f  Europe  l)y  Treaty,   II.  858,  808,  980.     Tlie  treaty  of  1831  was 
suj^-rseded  by  the  treaty  of  Ai)ril  19,  1839,  id.  979. 
'^Hertslet,  Map  of  Europe  by  Treaty,  I.  731. 


§41.]  RECOGNITION    OF    NEW    STATES.  Ill 

April  4,  1826,  Great  Britain  and  Russia  agreed  to  offer  their  media- 
tion on  the  basis  of  the  recognition  of  Greece  as  a  tributary  depend- 
ency b}^  the  Ottoman  Porte/'  By  a  treaty  signed  at  London  July  6, 
1827,  Great  Britain,  France,  and  Russia  agreed  to  offer  their  mediation 
to  Turke}^  on  the  same  basis,  and  coincident!}^  to  make  to  the  contend- 
ing parties  a  demand  for  an  immediate  armistice,  as  a  preliminary  and 
indispensable  condition  to  the  opening  of  any  negotiations.*  The  inde- 
pendence of  Greece  was  further  guaranteed  by  an  agreement  between 
the  same  powers  December  12,  1828.^  Meanwhile  war  had  broken 
out  between  Russia  and  Turkey',  and  on  September  9,  1829,  the  Porte 
adhered  to  the  treaty  of  London  of  July  6,  1827,  and  declared  that  it 
would  subscribe  to  all  the  decisions  which  the  London  conference 
should  adopt.''  By  Art.  IX.  of  the  treaty  of  peace  with  Russia  signed 
at  Adrianople  September  1-1,  1829,  Turkey  adhered  to  the  protocol 
adopted  by  the  London  conference  on  the  22d  of  the  preceding  March, 
by  which  the  independence  of  Greece  was  guaranteed,  under  the  suze- 
mint}'  of  the  Porte.''  B}"  a  conyention  signed  at  London  Ma}"  7 
1832,  between  Great  Britain,  France,  and  Russia  on  the  one  part  and 
Bavaria  on  the  other,  the  former  powers,  ""duly  authorized  for  this 
purpose  b}'  the  Greek  nation,"  offered  the  crown  of  Greece  to  Prince 
Frederick  Otho  of  Bayaria,  second  son  of  the  King  of  Bayaria,  who 
accepted  it  in  behalf  of  his  son.  then  a  minor.-^ 

"The  undersigned  Secretary  of  State  of  the  United  States  has  the 
honor  to  acknowledge  the  receipt  of  a  note  signed  by  the  ministers 
plenipotentiary  of  Great  Britain.  France  and  Russia  dated  the  18th  of 
April  instant. 

"By  this  note  the  said  ministers  plenipotentiary  are  pleased  to  com- 
municate to  the  Goyernment  of  the  United  States  that  the  courts  of 
Great  Britain,  France  and  Russia,  contracting  parties  to  the  public 
acts  by  which  Greece  has  been  constituted  an  independent  state,  and 
duly  authorized  by  the  Greek  nation,  haye  called  to  the  soyereignty  of 
this  new  state,  the  Prince  Otho  of  Bayaria,  and  that  this  prince  has 
taken  the  title  of  King  of  Greece  by  yirtue  of  this  arrangement,  that 
in  pursuance  of  a  conyention,  signed  the  7th  of  May  last,  and  ratified 
on  the  30th  of  June  following  by  His  Imperial  Majesty  the  Emperor 
of  all  the  Russias  and  their  ]Majesties  the  Kings  of  Great  Britain  and  of 
France  and  by  the  King  of  Bayaria,  as  tutor  of  his  son.  the  Prince 
Otho,  the  three  courts  by  which  the  said  ministers  plenipotentiary  are 
accredited  to  the  Government  of  the  L^nited  States  had  engaged  to 
request  from  other  Governments  the  recognition  of  Prince  Otho  as 
King  of  Greece  and  that  in  accordance  with  this  stipulation,  the  said 

«  Hertslet,  Map  of  Europe  by  Treaty,  I.  741.  d  Id.  II.  812. 

''Id.  I.  769.  ^Id.  II.  804. 

''  Id.  II.  798.  /  Id.  II.  893. 


112  states:  recognition  and  continuity.  [§  41. 

miiiistei's  plenipotentiary  had  received  instructions,  simultaneously 
and  in  common  to  inV'ite,  as  b}^  said  note  they  do  invite,  the  Govern- 
ment of  the  United  States  to  acknowledge  the  Prince  Otho  of  Bavaria 
as  King  of  Greece. 

'■'■This  note  has  been  laid  ])eforc  the  President  of  the  United  States, 
who  has  directed  the  undersigned  to  inform  the  ministers  plenipoten- 
tiar}'  of  the  said  three  powers  that  it  has  been  the  principle,  and  the 
invariable  practice  of  the  United  States  to  recognize  that  as  the  legal 
government  of  another  nation,  which,  by  its  establishment  in  the  actual 
exercise  of  political  power  might  be  supposed  to  have  received  the 
express  or  implied  assent  of  the  people,  and  that  he  is  therefore  happy 
that  the  assurance  given  In^  the  three  mediating  pow'ers,  that  they 
wore  duly  authorized  to  make  the  arrangement  they  announce,  by  the 
people  of  Greece,  will  enable  him  on  the  part  of  the  United  States, 
without  departing  from  their  known  principles  in  similar  cases,  to 
acknowledge  the  Prince  Otho  of  Bavaria,  as  the  King  of  Greece,  and 
to  comply  with  the  request  of  the  high  mediating  powers,  on  his 
reception  hy  the  people  of  that  country  as  their  sovereign." 

Mr.  Livingston,  Sec.  of  State,  to  Sir  Charles  R.  Vaughan,  Mr.  .Sernrier,  and 
Baron  de  Krudener,  envoys  extraordinary  and  ministers  plenipotentiary 
of  Great  Britain,  France,  and  Russia,  April  30,  1833,  MS.  Notes  to  For. 
Leg.,  V.  101. 

November  7,  1837,  the  United  States  formally  acknowledged  the 
independence  of  Greece  by  empowering  Mr.  Stevenson,  then  minister 
at  London,  to  negotiate  with  that  power  a  treaty  of  commerce  and 
navigation.  Such  a  treaty  was  signed  at  London  December  10/22, 
1837,  Mr.  Tricoupi,  then  Greek  plenipotentiary  at  that  capital,  repre- 
senting the  Government  of  Greece. 

In  1S4:8  a  general  parliament  met  at  Palermo,  Sicily,  which  then 
formed  part  of  the  Kingdom  of  the  Two  Sicilies,  declared 
the  Bourbons  dethroned,  adopted  a  constitution,  and 
elected  the  Duke  of  Genoa,  son  of  the  Sardinian  King,  as  King  of  Sicily. 
The  consid  of  the  United  States  at  Palermo,  on  receiving  notice  of  the 
facts  from  the  minister  of  foreign  affairs  of  the  new  Government,  at 
once  recognized  "the  nationality  and  independence  of  Sicih"  on  the 
part  of  the  United  States.''  About  a  month  afterwards  the  Sicilian 
mini.ster  of  foreign  affairs  wrote  to  the  consul,  and,  observing  that  he 
had  seen  in  the  official  journal  of  Naples  a  notice  that  the  newly 
appointed  consid  of  the  United  States  at  Messina  had  obtained  an 
exequatur  from  the  Neapolitan  (xovernment,  stated  that  "a  commis- 
sion presented  to,  and  rendered  executory  by,  a  government  foreign  to 
Sicil}'"  could  not  be  of  any  avail  there. 

The  Department  of  State,  when  advised  of  the  consid's  action,  did 
not  immediately  answer,  since  it  supposed  that  his  "recognition  of 


§41.]  RECOGNITION    OF   NEW    STATES.  113 

the  independence  of  the  Sicilian  Government,  being  a  mere  nullity  in 
itself,  would  pass  away  and  be  forgotten."  But  when  it  learned  that 
the  minister  of  foreign  affairs  of  the  new  Government  viewed  the 
matter  in  a  different  light,  it  decided  that  a  longer  silence  would  be 
improper,  and  instructed  the  consul  as  follows: 

"It  is  very  true  that  the  Government  of  the  United  States  has,  from 
its  origin,  always  recognized  de  facto  governments  as  soon  as  they 
have  clearly  manifested  their  ability  to  maintain  their  independence. 
We  do  not  go  behind  the  existing  government  to  involve  ourselves  in 
the  question  of  legitimacy. 

"But  what  authority  is  to  recognize  upon  the  application  of  these 
principles  to  a  new  government  claiming  to  exist  over  an  island 
which  constituted  an  infegral  part  of  the  dominions  of  a  sovereign 
with  whom  our  relations  are  of  a  friendly  character  ?  This  act  of  high 
sovereign  power  certainly  can  not,  without  instructions,  be  performed 
by  a  consul,  whose  functions  are  purely  commercial;  and  he  ought 
never  under  an\"  conceivable  circumstances  to  assume  such  a  high 
responsibility." 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Marston,  consul  at  Palermo,  Oct.  31,  1848, 
10  MS.  Desp.  to  consuls,  489;  replying  to  dispatches  of  Mr.  Marston  of 
July  11,  and  Aug.  28, 1848,  2  MS.  Consular  Letters,  Palermo,  1839-1849. 

"  My  purpose,  as  freely  avowed  in  this  correspondence,  was  to  have 
acknowledged  the  independence  of  Hungary  had  she 

ase  0  ungary.  g^j^^gg^jg^j  j,^  estiiblishing  a  government  de  facto  on  a 
basis  sufficientlj'  permanent  in  its  character  to  have  I'lLstified  me  in 
doing  so,  according  to  the  usages  and  settled  principles  of  this  Gov- 
ernment; and  although  she  is  now  fallen,  and  many  of  her  gallant 
patriots  are  in  exile  or  in  chains,  I  am  free  still  to  declare  that  had 
she  been  successful  in  the  maintenance  of  such  a  government  as  we 
could  have  recognized,  we  should  have  been  the  first  to  welcome  her 
into  the  family  of  nations." 

President  Taylor,  special  message.  Mar.  28,  1850. 

"  In  the  course  of  the  year  1848  and  the  early  part  of  1849  a  con- 
siderable number  of  Hungarians  came  to  the  United  States.  Among 
them  were  individuals  representing  them.selves  to  be  in  the  confidence 
of  the  revolutionary  government,  and  by  these  persons  the  President 
was  strongly  urged  to  recognize  the  existence  of  that  government. 
In  these  applications,  and  in  the  manner  in  which  they  were  viewed 
by  the  President,  there  was  nothing  unusual;  still  less  was  there  any- 
thing unauthorized  by  the  law  of  nations.  It  is  the  right  of  every 
independent  state  to  enter  into  friendly  relations  with  every  other  inde- 
pendent state.  Of  course,  questions  of  prudence  naturally  arise  in 
reference  to  new  states  l)rought  by  successful  revolutions  into  the 
H.  Doc.  551 8 


114  states:    recognition    and    CONTINriTV.  [S  4^. 

family  of  nations;  hut  it  is  not  to  1h^  re<)iiired  of  neutral  powers  that 
they  should  await  the  reoognition  of  the  new  o-overnnient  by  the  par- 
ent state.  No  principle  of  public  law  has  l>e«Mi  more  frecjuently  acted 
upon  within  the  last  thirty  years  by  the  «ri«'5it  powers  of  the  world 
than  this.  Within  that  jx^riod  eight  or  ten  new  stat<>s  have  established 
indejx^ndent  governmentvs  within  the  limits  of  the  colonial  dominions 
of  Spain  on  this  continent;  and  in  Europe  the  same  thing  has  been 
done  by  Belgium  and  (Ireece.  The  existence  of  all  these  govern- 
ments was  recognized  by  some  of  the  leading  powers  of  Europe,  as 
well  as  by  the  United  States,  before  it  was  acknowledged  by  the  states 
from  which  they  had  sepanited  themselves. 

••If,  therefore,  the  United  States  had  gone  so  far  as  fonualh'^  to 
acknowledge  the  independence  of  Hungary,  although,  as  the  event  has 
proved,  it  would  have  been  a  precipitate  step,  and  one  from  which  no 
Ix^nefit  would  have  resulted  to  either  party,  it  would  not.  nevertheless, 
have  l>een  an  act  against  the  law  of  nations,  provided  they  took  no 
part  in  her  contest  with  Aastria." 

Mr.  AVel)s'ter,  St^-.  of  State,  to  Mr.   Hi'ilfieniami.  Austrian  chai^6  d'affaires, 
Dec.  21,  1850,  MS.  Note.-*,  (Teriiiaii  States. 

Notice  of  the  declaration  of  indep«Midenco  of  Koumania,  pronounced 
by  the  National  Assembly,  with  the  approval  and  con- 
currence of  Pritice  Charles,  was  sent  abroad  by  that 
Government  through  diplomatic  channels  May  2*2  June  3,  1877.  The 
indejx^ndence  of  the  principality  was  recognized  by  the  treatv  of 
Berlin  July  13.  ls7s.  subject  to  certain  conditions.  The  Prince 
a.ssumed  the  title  of  Royal  Highness  in  Septeml)er.  ls7s.  Februarv 
20,  ISSO.  the  British,  French,  and  (ierman  representatives  at  Bucharest 
presented  to  the  Government  identic  notes  recognizing  the  independ- 
ence of  the  principality;  and  on  March  2H.  18S1.  the  Prince,  in  con- 
formity with  the  action  of  the  Chambers  in  proclaiming  Koumania  a 
kingdom,  assumed  the  title  of  King."  ••So  far  as  the  Executive 
Government  of  the  United  States  coidd  re<-ognize  that  of  Roimiania 
without  actual  diplomatic  n'presentatioji,  it  was  done  by  the  letter  of 
the  President  of  August  I'n  ls7s.  to  I*rince  Charles,  touching  the 
appointment  of  Mr.  Timothy  C.  Smith  as  consid  of  this  Government 
at  (ialatz:"  and  •'  nothing"  seemed  to  be  ••wanting  to  the  full  establish- 
ment of  relations  ♦  *  ♦  but  the  desired  action  of  Congress."  which 
the  President  had  already  invoked,  for  the  purpose  of  providing  for 
diplomatic  re])resentation.''     By  the  act  of  >Iav  14.  isso.'-  a  salarv  was 


"Hert*»let,  Map  ..f  Kiin.iK-  }.y  Treatv.  IV.  I'tlL'S.  iTiK);  For.  Rel.  1880,  52;  id 
is.*^  1,979. 

''Mr.  Kvart.«,  S«-.-.  of  State,  to  Mr.  Ka<soii,  minister  to  Aiistria-Hungarv,  March  9, 
1S80,  For.  Rel.  ISfiO,  p.  51. 

'■  21  Stat.  l.'i.S,  134. 


§  -il.]  RECOGNITION    OF    NEW    STATES.  115 

appropriated  for  '"a  diplomatic  agent  and  consul-general  at  Bucharest,"' 
and  ]Mr.  Eugene  Schu3^1er  was  so  commissioned  June  11, 1880,  In  his 
instructions  it  was  stated  that  he  was  accredited  to  the  person  of  the 
Roumanian  sovereign,  and  that  his  mission  was  to  be  considered  a 
legation;  and  on  the  strength  of  this  assurance  he  was  provisionally 
recognized  as  possessing  a  diplomatic  character.  President  Ha^es,  in 
his  annual  message  of  December  6,  1880,  stated  that  the  Goverinnent 
of  the  United  States  had  sent  a  "diplomatic  representative"'  to  Bucha- 
rest, and  had  received  at  Washington  the  special  envoy  who  had  "l)een 
charged  by  His  Royal  Highness  Prince  Charles  to  announce  the  inde- 
pendent sovereignty  of  Roumania.""  This  special  envoy  was  Colonel 
Voinesco.  He  was  instructed  to  represent  to  the  United  States  that 
as  the  title  of  "diplomatic  agent"*  imparted  no  definite  rank,  Mr. 
Schuyler  could  in  strictness  be  considered  as  holding  only  a  consular 
position,  and  that  he  should  be  invested  Avith  "a  title  corresponding 
exactly  to  the  character  of  his  mission,"""  By  the  act  of  Congress  of 
Fel)ruary  24, 1881,  Mr.  Schuyler's  diplomatic  rank  was  fixed  as  that  of 
charge  d'affaires.* 

When  the  principality  of  Roumania  was  proclaimed  a  kingdom  the 
latter  was  prompt^  recognized  bv  Belgium.  April  2,  1881,  Mr. 
Schuyler  telegraphed:  "England,  Itah",  and  four  others  recognize 
kingdom,"'  the  four  others  being  Monaco,  Greece,  Turkey,  and  Ser- 
via.  The  form  of  recognition  generally  adopted  was  to  congratulate 
the  King  and  Government  on  the  proclamation  of  the  kingdom  and  to 
promise  a  formal  reply  on  receipt  of  the  formal  announcement.  On 
April  3.  Mr.  Schuyler  received  this  telegraphic  reply:  "If  great 
powers  of  Europe  unite  in  recognizing  new  government  you  will  join 
with  them  and  express  congratulations  of  the  President.  Await  their 
action."'  After  recognition  had  been  given  by  France,  then  hy  Hol- 
land, and  then  by  Russia,  Austria,  and  Germany,  besides  the  powers 
previously  mentioned,  Mr.  Schuyler,  on  the  6th  of  April,  presented 
to  the  Government  the  congratulations  of  the  President,  and  on  the 
next  day  was  received  in  audience  by  the  King.''  Mr.  Schuyler  was 
subsequently  instructed  to  convey  the  cordial  congratulations  of  the 
President  to  the  King  on  his  coronation. '^^ 

The  independence  of  the  principality  of  Servia  was  recognized  in  the 
Treaty  of  Berlin  (Arts.  XXXIY.,  XXXV.)  on  condi- 
tions similar,  so  far  as  they  went,  to  those  in  the  case 
of  Roumania.  August  22,  1878,  Servia  proclaimed  its  independence. 
Mav  23.  1881.  Mr.  Schuyler,  then  charge  d"affaires  of  the  United  States 
at  Bucarest,  was  instructed  to  negotiate  a  treaty  with  Servia,  and.  in 

"Colonel  Voinesco,  Ronnianian  envoy,  to  ^Mr.  Evarts,  Sec.  of  State,  Nov.  21,  1K80, 
MSS.  I)ei)t.  of  State. 

'' 21  Stat.  340.  c  For.  Rel.  1881,  984.  ci  Id.  988. 


Ill)  STATKS:    RECOGNITION    AND    CONTINUITY.  [^  '^''^' 

rotT'ii'*!  t<*  t'"'  ivcou-nition  of  its  indopendeiu'C.  to  follow  the  directions 
crivcM  liiiii  ill  the  case  of  Koiimania."  A  letter  Avas  t^iven  to  him, 
addressed  to  the  Servian  minister  of  foreign  affairs,  and  accrediting 
him  as  the  hearer  of  full  powers  from  the  United  8tat<\s  to  negotiate 
the  treaties  therein  described. ''  Acting  under  this  special  authority 
from  the  President.  Mr.  Schuyler  concluded  at  Belgrade,  Oct()l)er 
'2  14.  issi.  the  treaty  with  Servia  concerning  the  rights  and  privileges 
of  conjjuls.' 

14.    StAT>-S    in    AkKK  a     AM)    TIIK    EaST 

>j  4-2. 

In  \S22  the  American  Colonization  Society  founded  a  settlement  on 
the  west  coast  of  Africa  for  freedmen  and  recaptured 
^  ^"*'  slaves.      In    1847  this  settlement,  called  Lil)eria,  was 

constituted  a  republic,  which  was  recognized  in  the  following  year  by 
certain  European  powers.  President  Lincoln,  in  his  iirst  annual  mes- 
sage. DecembiM-  H.  iStU.  declared  that  if  any  good  reason  existed  "why 
we  should  p(>T-s('V(>re  longei-  in  withholding  our  recognition  of  the  inde- 
j"MMul(Mict'  and  sovcM'eignty  of  Hayti  and  Liberia,"  he  was  unable  to 
disi-ern  it;  but.  l)eing  ••unwilling"  to  "inaugurate  a  novel  policy  in 
regai'd  to  them  without  the  approbation  of  Congress,"  he  sul)mitt€d 
for  consideration  •'the  expediency  of  an  appropriation  for  maintaining 
a  cliai'gt'  d'atiaircs  n(>ar  each  of  those  new  states."  By  an  act  approved 
June  .").  Is^iii.  the  Prt'sidtMit  was  •" authorized,  by  and  with  the  advice 
and  consent  of  tiic  Senate,  to  appoint  diplomatic  representatives  of 
the  United  States  to  the  Republics  of  Hayti  and  Liberia,  respectively,'*' 
each  of  such  i-epresentatives  to  ))e  "accredited  as  commissioner  and 
consul-general."  and  to  receive  a  stated  sum  as  compcMisation."' 

No  immediate  appointment  was  made  undei-  this  act  to  Liberia;  but 
on  Sept.  2'.^.  \Si\-2.  Mr.  Adams,  then  rnittMl  States  minister  to  FLngland. 
was  empowered  to  conclude  tiie  treaty  of  commerce  and  navigation 
which  he  signed  witii  tlie  President  of  Liberia,  at  London,  on  the  25th 
of  the  ensuing  Octobei'. 

June  1^4.  IsTl.  a  full  power  and  letter  of  crediMice  were  given  to  Mr. 

Kdgcomb.  United  States  consul  at  Cape  Town,  as  a  spe- 
Oranee  Free  State.       .    ,  ^   ^  •   i      i       ^^ 

cial  agent  to  negotiate  a  ti-eaty  with  the  Orange  rree 

State.'      He  concluded  a  treaty  at    Hloemfontein.  December  iJii.  1S71. 

"Mr.  Hlaiii.-.  See.  ..f  State,  to  Mr.  .Sclmylcr.  May  l':{,  ISSl.  MS.  Inst.  I\uuinaiiia,  I. 
4»>.  S'c  F<«r.  Ud.  1.S.S1, :;»;.  Mr.  .Schuyler's  full  jHiwer  tn  ii('t.">tiatc  and  si^Mi  a  treaty 
with  S«'rvia  \va.s  s«'nt  t<.  him  '.n  May  "JS,  issi.      (  Ms.  In.'^t.  Pvniiiiania.  1.  49. ) 

''Mr.  F^laiiie.  Se.-.  .,f  State,  to  Mr.  Schiivler.  .Iiilv  l-').  iss],  Ms.  Inst.  Houniaiiia, 
I.  .xi. 

'•  March  ti.  issi'.  the  I'rin.e  ..i  Ser\  ia.  on  tlie  invitation  of  the  Skii|ptchiiia,  assumed 
the  title  of  Kin^r.      i  Ilertslet.  Map  of  KuroiK^  hy  Treatv.  IV.  I'Ts.").  i 

''IJStat.  4'-'].  Mr.  Henry  Winter  I>avi>.  in  llou^e  liej.ort  !l".t,  Ms  ('un<r.  1  Seas., 
on  the  joint  resolution  on  Mexican  affaii>.  expre.-s.-l  the  view  that  Hayti  and  Liberia 
were  rec<^niz»'<l  hy  this  act. 

'  Sen.  Dot-.  40,  54  O'li^r.  L'  Sess.  s. 


§42.]  RECOGNITION    OF    NEW    STATES.  117 

"In  1879  a  body  was  formed  eallinjr  itself  the  International  Associa- 
tion of  th(^  Congo,  whicli  was  presided  over  l)v  the 
^  ■  King  of  the  Belgians  acting  as  a  private  individual, 

and  of  which  the  members  and  othcials  were  subjects  of  civilized 
states.  It  founded  esta])lishnients;  it  occupi«>d  territory;  it  obtained 
cessions  of  sovereignty  and  suzerainty  from  native  chiefs.  Yet  it 
was  neither  legally  dependent  upon  any  state,  nor  did  its  meml^ers 
reject  the  authority  of  their  respective  govenunents.  and  establish 
themselves  permanently  on  the  soil  as  a  dr  facto  independent  com- 
munity."" In  1884  this  association  represented  to  the  United  States 
that  it  had  ''by  treaties  with  the  legitimate  sovereigns"  in  the  basins 
of  the  Congo  and  adjacent  regions  obtained  the  cession  of  territory 
"for  the  use  and  benefit  of  Free  States  established  and  being  estab- 
lished under  the  care  and  supervision  of  the  said  association  in  said 
basins  and  adjacent  territories,  to  which  cession  the  said  Free  States  of 
right  succeed;"  that  it  had  adopted  for  itself  and  the  Free  States  in 
question  a  tiag;  that  it  and  the  Free  States  had  resolved  to  levy  no 
customs  duties  on  goods  imported  by  the  route  constructed  ai-ound  the 
Congo  cataracts;  that  they  guaranteed  to  foreigners  settling  in  their 
territories  "the  right  to  purchase,  sell,  or  lease  lands  and  l)uildings 
situated  therein,  to  estal)lish  commercial  houses,  and  to  there  carry  on 
trade,  upon  the  sole  condition  that  they  shall  obey  the  laws;"  and  that 
they  would  extend  e([ual  treatment  to  the  citizens  of  all  nations,  and 
do  all  in  their  power  to  prevent  the  slave  trade. ^ 

These  representations  })ear  date  April  22,  1884.  On  the  same  day 
Mr.  Frelinghuysen.  Secretary  of  State,  duly  empowered  by  the  Presi- 
dent, and  with  the  advice  and  consent  of  the  Senate  previously  given, 
declared  •'that,  in  harmony  with  the  traditional  policy  of  the  United 
States,  which  enjoins  a  proper  regard  for  the  commercial  interests  of 
their  citizens,  while  at  the  same  time  avoiding  interference  with  contro- 
versies between  other  powers,  as  well  as  alliances  with  foreign  nations, 
the  Government  of  the  United  States  announces  its  sympathy  with 
and  approval  of  the  humane  and  benevolent  purposes  of  the  Interna- 
tional Association  of  the  Congo,  administering,  as  it  does,  the  interests 
of  the  Free  States  there  established,  and  will  order  the  officers  of  the 
United  States,  both  on  land  and  sea.  to  recognize  the  tiag  of  the  Inter- 
national African  Association  as  the  tiag  of  a  friendly  government." 
By  th«»  act  of  July  T.  1S84,  Congress  made  an  appropriation  for  "an 
agent  to  tlu»  States  of  the  Congo,  *  *  *  sj^jj  -igeiit  to  be  charged 
with  introduciiiii"  and  extendinif  the  commerce  of  the  United  States  in 


"Hall,  Int.  Law,  4th  ed.  94.  See,  an  to  the  orij^in  of  the  a.^^sociatioii,  S.  Kx.  Doc. 
11)6,  49  Coii^'.  1  Se.<t^.  351. 

''See  Mr.  Kassoii  to  Mr.  Bayard,  March  1«,  1885,  S.  Ex.  Doc.  196,  49  Cong.  1  Sesa. 
186. 


118  states:  recognition  and  continuity.  [§42. 

the  C  on«r<>^'allev."  "  Germany,  by  a  convention  concluded  November 
8,  1.SS4.  recognized  the  association  as  a  **  friendly  State,"  wiiile  Great 
Britain,  in  December,  by  an  exchange  of  declarations,  after  the  manner 
of  the  Tnited  States,  recognized  its  flag  as  that  of  a  friendly  government. 
''Within  the  next  two  months  Itjiiy,  the  Netherlands.  Spain,  France, 
Russia,  and  Portugal  had  i-ecognized  the  association  as  a  government; 
Austria.  Sweden  and  Norway,  and  Deinuark  had  acknowledged  it  to  be  a 
State,  and  Belgium  placed  '  its  flagon  an  equality  with  that  of  a  friendly 
State.'""''  February  '2i).  18S5.  the  association  was  permitted  by  the 
Berlin  conference  to  adhere,  by  a  formal  declaration,  as  an  independent 
state,  to  the  general  act  concluded  on  that  day.''  When  King  Leo- 
pold II..  acting  under  the  authority  afterwards  given  him  by  the  Bel- 
gian C'haui))ers.  aiuiounced  the  formation  of  the  Independent  State  of 
the  Congo  and  his  assumption  of  the  place  of  sovereign  of  the  new 
state,  the  President  of  the  I'nited  States  formally  recognized  him  in 
that  character.' 

"The  Independent  State  of  the  Congo  has  been  organized  as  a  govern- 
ment, under  the  sovereignty  of  His  Majesty  the  King  of  the  Belgians, 
who  assumes  its  chief  magistracy  in  his  personal  character  ordy.  with- 
out making  the  new  State  a  dependency  of  Belgium.  *  *  *  The 
actit)n  taki'n  ))y  this  Government  last  year  in  ))eing  the  tirst  to  recog- 
nize tht>  flag  of  the  International  Association  of  the  Congo  has  been 
followed  by  formal  recognition  of  the  new  nationality  which  succeeds 
to  its  sovereign  powers. 

"A  conference  of  delegates  of  the  principal  commercial  nations  was 

""Whfii  yon  were  (lesij;imte<l  :i.<  agent  to  the  States  ot  the  Congo  Association  it 
wa.*"  not  intemlt'il,  titluT  l>y  thi!<  Department  or  l)y  Congrer^s,  to  actually  accredit  you 
to  the  government  of  the  States  of  tlie  Congo  Asi-o«'iation,  a.>!  it  was  well  known  here 
that  those  States,  as  a  i>oliti(al  entity,  did  not  exist.  You  were  charge^l  with  intro- 
ducing and  extending  the  connnerce  of  the  I'nittHi  States  in  the  Congo  Valley,  and 
in  order  to  «lelinit»'ly  tix  the  s«"oi)e  of  your  mission,  you  were  designate<l  as  agent  to 
the  States  of  the  Congo  AsscM-iation,  liecause  it  was  l)elieve<l  here  that  the  residents 
of  the  region  adjoining  and  including  the  Congo  Valley  seemed  on  the  verge  of  estal>- 
lishing  constitutional  States  by  i)rogressive  movement  hi  that  direction."  (Mr.  Fn-- 
linghuy.-en.  Sec.  of  State,  to  Mr.  Tisdel,  Dec.  12,  1SR4,  S.  Ex.  Doc.  196,  49  Cong.  1 
Hes-x.  Jin";  s«-f  also  .\nnual  McKsage,  Dec.  1,  1S84.  ) 

''Hall,  Int.  I^iw,4th  e<1.94. 

'■S.  Ex.  D.K-.  I'Wi,  49  Cong.  1  .<ess.  1S4,  29.S-LnH3. 

''  King  l>eoiH)ld  to  the  Pn-si<lent,  Aug.  1,  1HS.5;  the  President  to  King  T.,eoi)old,  Sept. 
11,  1SH.5.  S.  Kx.  D.K-.  UXi,  49  Cong.  1  sess.  ;i2«i,  3;',]. 

By  a  convention  l>etw»-en  Helgium  and  the  Independent  State  of  the  Congo,  con- 
dudtnl  July  ;{.  ls*t<),  it  wiL"-  ]»rovi<led  that  IVlgium  would  ailvance  to  thelndei)endent 
State  the  sum  of  •_''>,(KK).(HH)  francs,  and  that  six  months  after  the  expiration  of  the 
term  of  ten  years  li«-]ginm  would,  if  it  .«eemed  good  to  do  so,  aunex  the  Independent 
State  of  the  Congo,  with  all  the  projn-rty,  rights,  and  advantages  attached  to  the 
.sovereignty  of  that  State,  and  fuKill  its  ol)ligations  towanl  third  parties.  (Rivier, 
Principes  du  Droit  des  Geus,  1.  67.) 


§  43.]  RECOGNITION    OF    NEW    GOVERNMENTS.  119 

held  at  Berlin  la.st  winter  to  discuss  methods  whereb}^  the  Congo  Basin 
might  be  kept  open  to  the  world's  trade.  Delegates  attended  on 
behalf  of  the  United  States  on  the  understanding  that  their  part  should 
be  mereh'  deliberative,  without  imparting  to  the  results  any  binding 
chai-acter  so  far  as  the  United  States  were  concerned.  *  *  *  j^^^t- 
withstanding  the  reservation  under  which  the  delegates  of  the  United 
States  attended,  their  signatures  were  attached  to  the  general  act  in 
the  same  manner  as  those  of  the  plenipotentiaries  of  other  Govern- 
ments, thus  making  the  United  States  appear,  without  reserve  or 
qualification,  as  signatories  to  a  joint  international  engagement  impos- 
ing on  the  signers  the  conservation  of  the  territorial  integrity  of 
distant  regions  where  we  have  no  established  interests  or  control. 

''This  Governmeiit  does  not,  however,  regard  its  reservation  of 
liberty  of  action  in  the  premises  as  at  all  impaired;  and  holding  that 
an  engagement  to  share  in  the  obligation  of  enforcing  neutrality  in  the 
remote  valley  of  the  Congo  would  be  an  alliance  whose  responsibilities 
we  are  not  in  a  position  to  assume,  I  abstain  from  asking  the  sanction 
of  the  Senate  to  that  general  act." 

Annual  message,  Dec.  8,  1885. 

See,  generally,  as  to  the  Berlin  conference,  the  volume  entitled  "Affairs  of  the 
Independent  State  of  the  C'ongo,"  S.  Ex.  Doc.  196,  49  Cong.  1  sess. 

January  27, 1868,  Mr.  George  F.  Seward,  consul-general  at  Shanghai, 

was  empowered  to  negotiate  a  commercial  and  claims 

convention  with  the  King  of  Chosen,  or  Corea."     No 

treaty  was  made  with  the  country,  however,  till  March  22, 1882,  when 

Commodore  Shuf  eldt  signed  on  the  part  of  the  United  States  the  treat}' 

of  amity  and  commerce  of  that  date.'' 

III.  RECOGNITION  OF  NEW  GOVERNMENTS. 

1.  Fkan'ce. 

§43. 

August  16,  1792,  Gouverneur  Morris,  then  American  minister  at 

Paris,  wrote  to  his  Government  that  another  revolu- 

evo  u  ion  0  .  ^.^^^  ^^^  been  effected  in  that  capital,  and  that  "it  was 

i)loody.*'     He  referred  in  this  statement  to  the  deposition  of  the  King 

on  the  10th  of   the  month  and  the  events  that  attended  it.     He  asked 


"Sen.  Doc.  40,  54  Cong.  2  sess.  8. 

^>  "  Your  action  in  refusing  to  recognize  that  Corean  independence  dates  from  the 
()th  of  June,  1895,  is  approved.  The  position  assumed  by  this  Government  toward 
Corea  since  contracting  a  treaty  with  it  in  1882  has  in  no  wise  been  affected  by 
recent  events.  Corea' s  treaty  independence  since  then  has  been  for  us  an  estab- 
lished fact."  (Mr.  Adee,  Acting  Sec.  of  State,  to  Mr.  Sill,  minister  to  Corea,  July  9, 
1895,  For.  Rel.  1895,  II,  971.) 


120  J^TATKs:    RECOGNITION    AND    CONTINUITY.  [§43. 

for  instriK'tioiis  us  to  the  conduct  he  .should  pursue  "  in  the  circum- 
stances about  to  arise."  Tiie  present  executive  was,  he  said,  just  born, 
and  might  be  stifled  in  the  cradle;  and  he  found  himself  "in  a  state 
of  contingent  responsibility  of  the  most  delicate  kind."" 

Mr.  Jetierson,  as  Secretary  of  State.  November  7,  1792,  replied: 
**  It  accoi-ds  with  our  principles  to  acknowledge  any  Government  to 
Ik>  rightful  which  is  foi-nicd  In'  the  will  of  the  nation,  substantially 
declared.  The  late  (ioveriiment  was  of  this  kind,  and  was  accordingly 
acknowledged  by  all  the  branches  of  ours;  so  any  alteration  of  it 
which  shall  be  made  l)y  the  will  of  the  nation,  substantiall}"  declared, 
will  doubtless  be  acknowledged  in  like  manner.  With  such  a  (rovern- 
ment  m-nj  kind  of  l)usin«\ss  may  be  doin>.  But  there  are  .some  mat- 
ters which  1  conceive  might  be  transacted  with  a  (Tovernment  de  facto, 
such,  for  instance,  as  the  reforming  the  unfriendly  restrictions  on 
our  connuerce  tmd  navigation,  such  as  you  will  readily  distinguish  as 
they  occur.'*''' 

Writing  to  Morris  again,  March  12,  1793,  in  an  instruction  which 

has  often  been  cited  as  a  fundamental  authority,  Mr. 
Jefferson  to  Morris,    t    ii-  •  j 

«     V  ,o  ,.roo      'leiierson  .said: 
March  12,  1793.  .    ,       ,  '      .  • 

"I  am  sensible  that  your  situation  must  have  been 

difficult  during  the  transition  from  the  late  form  of  government  to  the 
reestablishment  of  .some  other  legitimate  authority,  and  that  you  may 
havel)een  at  a  loss  to  determine  with  whom  business  might  be  done. 
Nevertheless  when  principles  are  well  understood  their  application  is 
le.ss  eml)arrassing.  We  surely  can  not  deny  to  any  nation  that  right 
whereon  our  own  (Tovernmeiit  is  founded — that  every  one  may  govern 
it.self  according  to  whatever  .form  it  pleases,  and  change  the.se  forms  at 
its  own  will:  and  that  it  may  tran.sact  its  business  with  foreign  nations 
througii  whatever  organ  it  thinks  ])roper.  whether  king,  convention, 
a.s.sembly.  committee.  j)resident,  or  anything  else  it  may  clioo.se.  The 
will  of  the  tuition  is  the  only  thing  essential  to  ))e  regarded.  On  the 
di.s.solution  of  tiie  late  con.-^titution  in  France,  by  removing  so  integral 
a  part  of  it  as  the  King,  the  National  Assc^nbly,  to  whom  a  part  only 
of  the  public  authority  had  been  delegated.  a])pear  to  have  considered 
them.selves  as  incomi)eteiit  to  tran.sact  the  affairs  of  the  nation  legiti- 
mately. I'hey  invited  their  fellow  citizens  therefore  to  appoint  a 
national  convention.  In  conformity  with  this  their  idea  of  the  defect- 
ive state  of  the  national  authority,  you  were  desired  from  hence  to 
su.spend  further  i)ayments  of  our  del)t  to  Fiance  till  new  orders,  with 
an  a.ssurance  however  to  the  acting  power  that  the  suspension  should 
not  be  continued  a  moment  longer  than  should  be  nec(>s.sarv  for  us  to 
see  the  reestablishment  of  .some  jx'rson  or  body  of  persons  authorized 


"Am.  St.  I'ap.  Fur.  Rt-l.,  I.  :«;^,  :i34. 
i-Jeffereou'H  Works,  ed.  by  Wasihington,  III.  489. 


§ -t3.]  RECOGNITION    OF    NEW    GOVERNMENTS.  121 

to  receive  payment  and  give  us  a  good  acquittal  (if  you  should  find  it 
necessary  to  give  any  assurance  or  explanation  at  all).  In  the  mean 
time  we  went  on  paying  up  the  four  millions  of  livres  which  had  been 
destined  by  the  last  constituted  authorities  to  the  relief  of  St.  Domingo. 
Before  this  was  completed  we  received  information  that  a  national 
assembh'  had  met,  with  full  powers  to  transact  the  affairs  of  the  nation, 
and  soon  after  the  minister  of  France  here  pi'esented  an  application 
for  three  millions  of  livres  to  be  laid  out  in  provisions  to  be  sent  to 
France.  Urged  by  the  strongest  attachments  to  that  country,  and 
thinking  it  even  providential  that  monies  lent  to  us  in  distress  could 
be  repaid  under  like  circumstances,  we  had  no  hesitation  to  comply 
with  the  application,  and  arrangements  are  accordingh^  taken  for  fur- 
nishing this  sum  at  epochs  accommodated  to  the  demand  and  our  means 
of  paying  it."" 

February  IT,  1793,  M.  Ternant,  the  French  minister  at  Philadelphia, 

notified  the  United  States,  in  the  name  of  the  Provi- 
Kesponse  to  M.  Ter-  ^j^^^^j  Executive  Council,  that  the  French  nation  had 
nant.  ...  . 

constituted  itself  into  a  Republic.    This  notification  was 

acknowledged  by  Mr.  Jefferson,  in  the  name  of  the  President,  on  the  23d 
of  the  same  month.  He  stated  that  the  President  had  received  "with 
great  satisfaction  this  attention  of  the  Executive  Council,"  in  making 
known  the  resolution  entered  into  by  the  National  Convention,  even 
before  "a  definitive  regulation  of  their  new  establishment  could  take 
place;"  that  the  Government  and  citizens  of  the  United  States  viewed 
with  the  most  sincere  pleasure  every  advance  of  the  French  nation 
"towards  its  happiness,  an  object  essential!}'  connected  with  its  lib- 
erty;" that  the  "genuine  and  general  effusions  of  joy"  ttiat  had  over- 
spread the  United  States  on  seeing  the  lil)erties  of  France  "rise 
superior  to  foreign  invasion  and  domestic  trouble"  had  proved  that 
the  "sympathies"  of  the  American  people  were  "great  and  sincere," 
and  that  it  was  hoped  that  these  mutual  dispositions  might  be  impro^'ed 
by  placing  the  commercial  intercourse  between  the  two  countries  on 
principles  "as  friendly  to  natural  right  and  freedom"  as  were  those  of 
their  Governments.* 
April  18,  1793,  Washington  submitted  to  the  various  members  of 
his  Cabinet  a  series  of  questions  touching  the  rela- 
tions between  the  United  States  and  France.  Among 
these  were  the  questions  whether  a  minister  from  the  Republic  of 
France  should  be  received;  and,  if  so,  whether  he  should  be  received 
absolutely  or  with  qualifications.  It  was  unanimously  agreed  that  he 
should  be  received;  but  Hamilton,  supported  by  Knox,  the  Secretary 

"Writings  of  Thomas  Jefferson,  by  Ford,  VI.  199.  For  Washington's  comments 
on  this  letter,  see  Ford's  Writings  of  Washington,  XII.  269.  Mr.  Jefferson's  letter 
is  engrossed  in  Instructions  to  U.  States  Ministers,  I.  235. 

bMS.  Dom.  Let.  V.  64. 


\2'2  ?^TATES;    RErOGXTTIOJI    AND    CONTINUITY.  [§  34:. 

of  ^^'a^.  rh«)u«rlit  that  his  reception  should  be  qualified  by  a  previous 
dt'claratioii  to  the  etfeet  that  the  Tnited  States  reserved  the  question 
whether  the  treaties.  ]>y  which  the  relations  between  the  two  countries 
were  formed,  were  not  to  be  deemed  temporarily  and  provisionally 
suspended.  Jeti'erson.  however,  supported  by  Randolph,  the  Attor- 
ney-! General,  maintained  that  he  should  be  received  without  reserva- 
tion; and  when,  in  the  followintr  May.  M.  Genet,  the  minister  of  the 
P'rench  Republic,  arrived  in  Philadelphia,  the  President  iunnediately 
jrjive  him  an  unipialitied  reception." 

••'rh«^  recoirnition  of  Napoleon  as  Emperor  of  the  French  was  effected 

by  new  credentials  to  Mr.  Armstrong,  the  American 

mpire  an      ®  mijiister  at  Paris.     In  order  that  the  action  of  the 

Monarchy. 

I  nited  States  imght  l)e  prompt  and  proper  a  blank 
form  of  credence  signed  by  the  President  was  sent  to  Mr.  Armstrong, 
to  till  out  in  the  form  and  style  required  by  the  new  Government,  and 
to  present  when  satisfied  that  the  Empire  was  in  possession  and  con- 
trol of  the  governmental  power  and  the  territory  of  the  nation — the 
usual  conditions  precedent  in  all  cases  of  recognition  l)v  the  United 
States  Government.  (See  MSS..  Instructions  to  France.  U.  S.  Dept. 
of  State,  vol.  ♦;.  p.  :>.58.  Aug.  -21.  1S04.) 

"A  similar  course  was  followed  upon  the  abdication  of  Napoleon 
and  th«>  restoration  of  the  Monarchy  (Louis  XVIII.).  1814.  A  blank 
form  of  credence  was  sent  to  Mr.  Crawford,  to  be  properly  tilled  out  at 
Paris  and  ^jrescnted  as  recpiired.  (.W  Ibid.,  vol.  7.  p.  371.  June  27. 
l.sU.)" 

KepMit  Ml  Mr.  Allen.  Chief  of  Bureau  of  Roll.-  au<l  Library.  Jan.  1,  1897,  S.  Ex. 
I  >..<•.  40.  54  C.nir.  2  se.<s. 

■■Thcmyal  family  left  Paris  on  the  19tli  in.«tant,  at  midnight,  and  took  the 
mad  fur  l,illc.  Yesterday  morning  I  received  a  note  from  Count  Jarcourt 
statiiit:  the  departure  of  the  King,  and  informing  me  that  he  would  see 
with  i>lea.<ure  the  di}>lomatic  eorj><,  without,  however,  constraining  those 
who  prefer  to  return  to  their  respective  courts.  *  *  *  Tlic  EmiR-ror 
has  iKit  ytt  appointed  his  mini.-^ter  of  foreign  relations.  I  think  it  i:-- 
l»r..halile  Caulaincnirt  will  Ix'  apiM.inted.  I  shall  en<leavor  to  see  the 
minister  shortly  after  his  appointment  for  liusiness  |)urposes  which  are 
_specilie<i."  iMr.  Crawfttrd.  minister  at  Paris,  to  Mr.  Monroe,  Sec.  of 
State  (  unolfirial  I.  Mur.  L'l.  1S15,  Monroe  Pap.,  Deiit.  of  State.  ) 

July  •_'•;.   Is.'Jii.   in   the  midst  of  ])ul»lic  expectation  of  the  meeting 

of  the  legislative  chambers,  which  had  been  sum- 
E€volutionofl830—  ,  i         .     i       ,.     .  ,        ... 

Louis  Philippe.      '"<•'"'<'  ^<'  '"•'<'t  <*"   th(>  .^,rd  of  August,  the  king  of 

France,  after  holding  a  royal  council,  promulgated 

certain    ordinances    which    annoimccd    the    dissolution    of    the    new 

Chamber  of  Deputies,  made  radical  changes  in  the  svstem  of  elections. 


"Writiiik's  uf  Wa.-hington.  Sparks'  ed..  X.  noS;  Jefferson's  Worky,  \Vai^hington's 
eti.,  IX.  14(1:  Hauiiltun's  Works,  lx«Jge".-  ed.,  IV.  74-79;  Jefferson's  Works,  Ford's 
ed.,  VI.  219,  220;  Jefferson's  Works,  Washington's  ed.,  III.  563. 


S  34.]  RECOGNITION    OF    NEW    GOVERNMENTS.  123 

suspended  the  liberty  of  the  press,  and  suppressed  all  the  journals  of 
the  opposition.  On  the  following  da}'  large  assemblages  of  the  people 
took  place  in  the  streets,  and  several  collisions  occurred  with  the  mili- 
tary, who  attempted  to  disperse  them.  On  the  28th  of  July  Paris 
Avas  declared  by  the  King  to  be  in  a  state  of  siege,  ])ut  the  popular 
forces  increased  and  the  contest  assumed  a  more  serious  and  sanguinary 
character.  On  Thursday,  the  29th,  the  people  took  the  Louvre  and 
the  Tuileries,  to  which  the  military  had  retired,  and  the  remnant  of 
the  troops,  many  of  whom  had  joined  the  people,  retired  beyond  the 
city  walls.  A  civil  government  was  immediately  organized,  with  the 
general  assent  of  the  people,  by  the  deputies  who  happened  to  be  in 
the  city.  Thus  came  about  what  Mr.  Rives,  then  minister  of  the  United 
States  at  Paris,  describes  as  '"one  of  the  most  wonderful  revolutions 
which  have  ever  occurred  in  the  history  of  the  world."  "At  this 
moment,''  said  Mr.  Rives,  "the  tricolored  flag  waves  over  the  palace 
of  the  Tuileries,  and  the  city  of  Paris,  after  passing  through  three 
days  of  commotion  and  bloodshed,  is  now  as  tranquil,  under  its  pro- 
visional government,  as  I  have  ever  seen  it  under  the  royal  authority. 
The  King,  who,  with  all  his  ministers,  remained  at  St.  Cloud's  during 
the  troubles  here,  has,  it  is  said,  abandoned  St.  Cloud  and  taken  the 
route  to  the  Netherlands."^'  Referring  to  Louis  Philippe,  who  had 
been  installed  as  King,  and  whose  Government  was  dul}^  recognized, 
President  Jackson,  in  his  annual  message  of  December  6,  1830, 
declared  that  the  American  people,  while  assured  of  "the  high  char- 
acter of  the  present  King  of  the  French,"  a  character  which,  if  sus- 
tained to  the  end,  would  "secure  to  him  the  proud  appellation  of  the 
Patriot  King,"  yet  rejoiced  "  not  in  his  success,  but  in  that  of  the 
great  principle  which  has  borne  him  to  the  throne — the  paramount 
authority  of  the  public  will."^' 

February  24,  1848,    Mr.   Rush,  LTnited  States   minister  at   Paris, 
wrote  that  the  attempt  of  the  Government  to  enforce 
^1848^   ^*''      Avith  troops  an  interdict  forbidding  a  "reform  ban- 
quet," which  was  to  have  been  held  by  the  opposition 
members  of  the  Chamber  of  Deputies  and  others,  had  produced  a  state 
of  things  "little  short  of  revolutionary."     Even  as  he  wrote  cavalry 
were   hastily  passing   through  the   streets  within   his   hearing,   and 
rumors  were  flying  that  the  King  had  abdicated  and  that  the  Count  of 
Paris  was  proclaimed.'^     Scarcely  had  he  folded  his  dispatch,  when  the 
revolution  was   accomplished   and   the   monarchy  overthrown.     The 
King  abdicated  and  fled  with  the  royal  family,  and  all  attempts  to 
establish  a  regency,  with  the  Count  of  Paris  as  successor  to  the  throne, 

«Mr.  Rives,  minister  to  France,  to  ]Mr.  Van  Buren,  Sec.  of  State,  July  30,  1830, 
H.  Ex.  Doc.  147,  22  Cong.  2  .sess.  138. 

&  Richardson,  Messages  and  Papers  of  the  Presidents,  II.  501. 
cS.  Ex.  Doc.  53,  30  Cong.  1  sess.  2. 


124  states:    RECOGNITION    AND    CONTINUITY.  [§45. 

failed.  A  provisional  government  was  immediately  formed.  It  was 
proclaimed  on  the  morning-  of  Friday,  the  25th,  the  proclamation 
declaring  that  the  provisional  government  desired  a  republic,  subject 
to  the  ratitication  of  the  French  people.  On  Saturday,  the  26th,  Mr. 
Rush  received  an  intimation  that  his  "personal  presence  at  the  Hotel 
de  Ville.  to  cheer  and  felicitate  the  provisional  Government,  would  be 
accepta))le.'*  Before  the  day  was  out  he  imparted  his  determination 
to  take  the  step.  ^Monday,  the  28th,  was  appointed  for  it,  and  on  that 
(Uiy  he  repaired  to  the  Hotel  de  Ville,  accompanied  by  his  secretary 
of  legation,  and  delivered  to  the  President  and  other  members  of  the 
provisional  (Joveriuuent  there  assemlded  an  address  of  congratulation. 
On  the  same  day  he  acknowledged  a  note  written  by  M.  Lamartine,  as 
minister  of  foreign  affairs  of  "the  provisional  government  of  the 
French  Kepu))lic.''' and  stated  that,  pending  the  receipt  of  instructions, 
he  would  l)e  ready  to  transact  with  him  whatever  business  might 
appertain  to  the  United  States  or  to  its  citizens  in  France." 

Mr.  Buchanan,  in  transmitting  to  Mr.  Rush  a  letter  of  credence  to 
the  French  Kc^public.  said: 

''  It  was  right  and  proper  that  the  envoy  extraordinary  and  minister 
plenipotentiary  from  the  Fnited  States  should  be  the  first  to  recog- 
nize, so  far  as  his  powers  extended,  the  provisional  Government  of  the 
French  Repul)lic.  Indeed,  had  tlie  representative  of  any  other  nation 
prececU'd  you  in  this  good  work,  it  would  have  been  regretted  by  the 
President.  *  *  *  In  its  intercourse  with  foreign  nations  the  Gov 
ernmcnt  of  tiie  United  States  has.  from  its  origin,  always  recognized 
(h-  facto  govci'nments.  We  recognize  the  right  of  all  nations  to  create 
and  re-form  their  ])()liti('al  institutions  according  to  their  own  will  and 
])leasure.  ^Ve  do  not  go  behind  tlie  existing  Government  to  involve 
ourseh cs  in  the  <|uestion  of  legitimacy.  It  is  sufficient  for  us  to  know 
that  a  government  exists  (•ai)able  of  maintaining  itself;  and  then  its 
recognition  on  our  j)art  inevital)ly  follows.  This  principle  of  action, 
resulting  from  our  siicred  regard  for  the  ind(>pendence  of  nations,  has 
occasioned  some  strange  anomalies  in  our  history.  The  Pope,  the 
Em})ei-or  of  Russia,  and  President  Jai'kson  were  th(^  oidy  authorities 
on  earth  whicii  ever  i-ecognized  Dom  Miguel  as  King  of  Portugal. 

••  Whilst  this  is  oiii"  s«'ttled  policy,  it  does  not  follow  that  w(»  can  ever 
be  indifferent  spcctatois  to  the  progress  of  lilu'j'ty  throughout  the  world, 
and  especially  in  France,  ^\'e  can  ne\er  foi'get  the  obligations  which 
we  owe  to  that  geneious  nation  for  their  aid  at  the  dai-kest  period  of 
our  Revolutionary  war  in  achie\ing  our  own  independence.  *  *  * 
It  was,  tlierefoie,  with  one  universal  burst  of  enthusiasm  that  the 
American  peo|)le  hailed  the  lat<>  glorious  rexoiution  in  France  in  favor 
of  liberty  and   lepubliean  goveiinnent.      In  this  feeling  the  President 


"S.  Ex.  Doc.  32,  30  Cong.  1  sess.  2-6. 


§  ^3.]  RECOGNITION    OF    NEW    GOVERNMENTS.  125 

strongly  sympathizes.  Warm  aspirations  for  tho  success  of  the  new 
Republic  are  breathed  from  ever}^  heart. "  " 

President  Polk,  in  a  special  message  to  Congress,  spoke  in  similar 
terms,  saying  that  Mr.  Rush,  called  upon  to  act  in  a  sudden  emer- 
gency, which  could  not  have  been  anticipated  by  his  instructions, 
"judged  rightly  of  the  feelings  and  sentiments  of  his  Government  and 
of  his  countrymen,  when,  in  advance  of  the  diplomatic  representatives 
of  other  countries,  he  was  the  first  to  recognize,  so  far  as  it  was  in  his 
power,  the  free  Government  established  by  the  French  people. 

"The  policy  of  the  United  States  has  ever  been  that  of  noninterven- 
tion in  the  domestic  affairs  of  other  countries,  leaving  to  each  to  estab- 
lish the  form  of  government  of  its  own  choice.  While  this  wise  policy 
will  be  maintained  toward  France,  now  suddenly  transfoi-med  from  a 
monarchy  into  a  republic,  all  our  sympathies  arc  naturally  enlisted  on 
the  side  of  a  great  people,  who  imitating  our  example,  have  resolved 
to  be  free."'^ 

Congress,  by  a  joint  resolution,  tendered  its  congratulations,  in  the 
name  of  the  American  people,  "to  the  people  of  France,  upon  the 
success  of  their  recent  efforts  to  consolidate  the  principles  of  liberty 
in  a  republican  form  of  government,-'  and  requested  the  President  to 
transmit  the  resolution  to  the  American  minister  at  Paris,  with  instruc- 
tions to  present  it  to  the  French  Government.'' 

December  2, 1851,  Louis  Napoleon,  as  President  of  the  French  Repub- 
lic, issued  a  decree  dissolving  the  National  Assembly 
Kevolution  of  1851;         i  ^^  -i      j;   ijii.   i.        i      i      •  •  i        a?  j. 

,  _,     .  and  Council  ot  otate,  declaring  universal  suffrage  to 

Second  Empire.  i  •   i      i  i  •  i  ...  . 

be  established,  convoking  the  people  in  their  primary 

assemblies,  and  proclaiming  a  state  of  siege.  Mr.  Rives,  the  minister 
of  the  United  States  at  Paris,  continued  his  communications,  though 
informalh',  with  the  department  of  foreign  affairs,  but  abstained  for 
the  moment  from  appearing  at  the  weekly  receptions  of  the  President, 
pursuing  in  this  regard  a  different  course  from  that  observed  ))y  the 
rest  of  the  diplomatic  corps,  with  the  exception  of  the  Swiss  minister, 
who  soon  received  instructions,  however,  to  resume  his  attendance. 
"I  felt  it  did  not  become  me,'-  said  Mr.  Rives,  "representing  as  1  did 
a  free  constitutional  repul)lic  and  a  people  imbued  with  a  sacred 
hereditary  attachment  to  the  fundamental  guaranties  of  civil  and  polit- 
ical liberty,  to  seem,  b}-  my  presence,  on  an  occasion  succeeding  so 
soon  the  successful    eoup  (Vetat  of    the   President,   to  give  eithcM-  a 

«Mr.  Buchanan,  .Sec.  of  State,  to  Mr.  Kusli,  March  .SI,  1848,  S.  Ex.  Doc.  ."i.S,  30 
Cong.  1  sess.  3. 

^i  April  3,  1848,  S.  Ex.  Doc.  32, 30  Cong.  1  sess.  1-2;  Richardson's  Messages,  IV.  576. 

<"9  Stat.  334.  See,  also,  Mr.  Buchanan  to  Mr.  Rush,  April  6,  1848,  announcing  the 
adoption  of  the  resolution  unanimously  by  the  Senate  on  that  day,  uniler  a  suspen- 
sion of  rules.     (MS.  Inst.  France,  XV.  69.) 


V2(\  states:    RECt)G>^ITION    AND    CONTINUITY.  [IJ  -13. 

])ersoiKil  or  ottii-iul  sanction  to  nieasures  liy  which  all  those  guaranties 
had  been  trodden  under  foot."" 

The  elections  held  throughout  France  on  the  2(>th  and  21st  of  Decem- 
ber. 1851.  having  resulted  in  the  exhil)ition  of  the  "unprecedented 
majority"  of  7.489,216  to  6rK),T3T  in  favor  of  prolonging  and  enlarging 
the  President's  powers,  Mr.  Rives  attended  his  reception  on  the  New 
Year.'' 

•'Your  dispatches  have  been  regularly  received  up  to  the  24th  of 
last  month.  *  *  *  Before  this  reaches  you  the 
Mr.  Webster  to  Mr.  election  will  be  over;  and  if.  as  is  pro])able.  a  decided 
is^iasa  ^'^'^^^''  majority  of  the  people  should  be  found  to  support  the 
President,  the  course  of  duty  for  30U  will  become 
plain.  From  President  ^Vashington^s  time  down  to  the  present  day  it 
has  l)een  a  principle,  always  acknowledged  by  the  United  States,  that 
every  nation  possesses  a  right  to  govern  itself  according  to  its  own 
will,  to  i-hange  institutions  at  di.scretion.  and  to  tran.sact  its  bu.siness 
through  whatever  agents  it  may  think  proper  to  employ.  This  cardi- 
nal point  in  our  policy  has  been  strongly  illustrated  by  recognizing 
th«'  man}'  forms  of  political  power  which  have  been  successively  adopted 
by  France  in  the  .series  of  revolutions  with  which  that  country  has  been 
visited.  Throughout  jdl  these  changes  the  (xovernment  of  the  United 
States  has  conducted  itself  in  strict  conformity  to  the  original  princi- 
ples adopted  by  Washington,  and  made  known  to  our  diplomatic  agents 
abroad,  and  to  the  nations  of  the  world,  by  Mr.  Jefier.son's  letter  to 
(rouverneur  Morris,  of  the  l2th  ]\Iarch.  17t»3:  and  if  the  French  people 
have  now  substantially  made  another  change,  we  have  no  choice  but  to 
acknowledge  that  also:  and  as  the  diplomatic  representative  of  your 
country  in  France,  yon  will  act  as  your  predeces.sors  have  acted,  and 
conform  to  what  api)ears  to  l)e  settled  national  authority.  And  while 
we  deeply  r«'gi'ct  the  overthrow  of  i)opular  institutions,  yet  oui"  ancient 
ally  has  still  our  good  wish«'s  for  her  prosperity  and  happiness,  and  we 
are  bound  to  leave  to  her  the  choice  of  means  for  the  promotion  of 
those  ends." 

Mr.  Wcl)<t(T,  Sec.   ..f  State  to  Mr.   Kivcs,   Jan.   iL',  IS.^2.  S.   Ex.   Doc.  19,  82 

("oiijr.  1  ses.<.   lit. 
S<H'.  al.-^<>.  mcs.^afri'  uf  March  -\.  ls.">.';.  S.  V'.x.  Doc.  7,  'A'2  Coiiir.  special  session. 

On  the  estaltlishment  of  the  Seeond  Kmpire.  under  Louis  Napoleon 
as  Napoleon  III..  Mr.  Kives  was  furnished  with  a  new  credence  in  the 
usual  way.  and  was  instructed  to  recognize  the  imperial  authoritv,  the 
assurance  l»eiiig  repeated  that  the  United  States  gladlv  recognized 
the  right  of  every  nation  to  determine  the  form  of  its  government.'" 


"Mr.  Kives  to  Mr.  Wt-hstt-r.  .Scc.  ..1  State.    Dec.  lo.  js.')].  s.  Kx.  Doc.  Itt,  .S2  Cong. 

1  .«eH<.  S,  1.''.. 

''S.  Ex.  D.H-.  19,  :V2  C'ont:.  1  s«-ss.  Is. 

•MS.  In.«t.  France,  XV.  ItWi.  1»)9,  I)e<-.  ITaii'l    |)«c.   Is.  ls.')i':  s.  Doc.  4U,  5-4  (Jong. 

2  ses.«.  3. 


§  -13.]  RECOGNITION    OF    NEW    GOVERNMENTS.  127 

Napoleon  III.  having  been  deposed  and  a  Republic  having  been 
proclaimed  under  the  provisional  government  of  the 
pu  ic,  .  >^^^j-JQj^jjj  Defense  Committee.  Mr.  Washburne,  the 
minister  of  the  United  States  at  Paris,  September  6.  1870,  was 
instructed:  "If  provisional  government  has  actual  control  and  posses- 
sion of  power,  and  is  acknowledged  by  French  people,  so  as  to  be,  in 
point  of  fact,  de  facto  government,  of  which  you  will  be  able  to  decide 
by  the  time  this  reaches  you,  you  will  not  hesitate  to  recognize  it."" 
On  the  same  day  another  telegram  was  sent:  "It  appearing  ])y  ^our 
last  dispatch  that  new  government  is  fully  installed  and  Paris  remains 
tranquil,  you  will  recognize."  And  later,  another:  "As  soon  as  situa- 
tion in  your  judgment  shall  justify,  tender  the  congratulations  of 
President  and  people  of  United  States  on  the  successful  establishment 
of  Republican  government.'"'^  September  7,  Mr.  Washburne  recog- 
nized the  new  government,  being  the  first  diplomatic  representative 
to  do  so. 

"As  soon  as  I  learned  that  a  Republic  had  been  proclaimed  at  Paris, 
and  that  the  people  of  France  had  acquiesced  in  the  change,  the  minis- 
ter of  the  United  States  was  directed  b}'  telegraph  to  recognize  it,  and 
to  tender  my  congratulations  and  those  of  the  people  of  the  United 
States.  The  reestablishment  in  France  of  a  system  of  government 
disconnected  with  the  dynastic  traditions  of  Europe  appeared  to  be  a 
proper  subject  for  the  felicitations  of  Americans.  Should  the  present 
struggle  result  in  attaching  the  hearts  of  the  French  to  our  simpler 
forms  of  representative  government,  it  will  be  a  subject  of  still  further 
satisfaction  to  our  people.  While  we  make  no  effort  to  impose  our 
institutions  upon  the  inhabitants  of  other  countries,  and  while  we 
adhere  to  our  traditional  neutrality  in  civil  contests  elsewhere,  we  can 
not  be  indifferent  to  the  spread  of  American  political  ideas  in  a  great 
and  highly  civilized  country  like  France." 

President  (irant,  Second  Annual  Message,  Dec.  5,  1870. 

"The  regular  Government  of  France,  constituted  by  the  will  of  the 
people  as  expressed  through  the  National  Assembly  at  Bordeaux, 
having  been  driven  from  Paris  by  the  insurrectionary  movement  and 
established  itself  at  Versailles,  1  deem  it  my  duty  to  follow  that  Gov- 
ernment, and  shall,  therefore,  on  to-morrow  or  the  next  day.  remove 
thither  with  the  legation,  leaving  one  of  the  secretaries  in  charge  here. 
Every  member  of  the  diplomatic  corps  will  also  leave." 

Mr.  AVa-shburne  to  Mr.  Fish,  Mar.  19,  1871,  MS.  Dispatches,  France. 

See  Franco-German  War  and  Insurrection  of  the  Commune,  containing  the 

correspondence  of  Mr.  "Washburne,  which  was  comnumicated  to  Congress 

with  the  President's  message  of  Fel).  (5,  1878. 

"  ^Ir.  Davis,  Acting  Sec. ,  to  Mr.  Washburne,  telegram,  Sept.  6, 1870,  For.  Kel.  1870, 67. 
'^For.  Rel.  1870,  67. 


128  states:  recognition  and  continuity.  [§  4^- 

Mr.  Washburne  was  instructed  by  telegraph,  March  11,  1871:  "You  will  ret> 
ognize  the  government  of  M.  Thiers."  (Mr.  Fish,  Sec.  of  State,  to  Mr. 
Washburne,  MS.  Inst.  France,  XVIII.  489.) 

2.  The  Netherlands. 
§  44. 

In  November,  1794,  Mr,  John  Qiiinov  Adams,  then  minister  to  the 

*  .V       ..•      Netherlands,  sought  instructions  as  to  the  course  he 
Case  of  Absorption.    ,  ,  .  .    , 

should  pursue  m  case  of  the  conquest  ot  the  country  l)}- 

France.     Mr.  Randolph,  Secretary  of  State,  replied: 

•""The  maxim  of  the  President  toward  France  has  been  to  follow  the 
gov^ernment  of  the  people.  Whatsoever  regimen  a  majority  of  them 
shall  establish,  is  both  de  facto  and  (lejurei\i9it  to  which  our  minister 
there  addresses  himself.  If  therefore  the  independency  of  the  United 
Netherlands  continues,  it  is  wished  that  you  make  no  difficulty  in  pass- 
ing from  the  old  to  any  new  constitution  of  the  people.  If  the  new 
rulers  will  accept  3'our  old  powers,  and  credentials,  offer  them.  If 
they  require  others,  adapted  to  the  new  order  of  things,  assure  the 
proper  bodies  or  individuals  that  you  will  write  for  them,  and  doubt 
not  that  they  will  be  expedited.'' 

Should  the  United  Netherlands,  added  Mr.  Randolph,  become  a 
dependencv  of  France,  Mr.  Adams'  mission  would  of  course  be  ended 
by  the  extinction  of  the  nation  itself;  but  in  such  case  he  was  to  con- 
tinue on  the  groiuid,  report,  and  await  instructions,  and  avoid  giving 
offence  to  either  side;  and.  should  it  be  doubtful  in  whose  hands  victory 
Avould  ultimatel}'  rest,  prudence  would  prevent  his  committing  the 
government  till  he  could  see  his  way  clear.  He  would  be  best  able  to 
judge  whether,  under  this  or  any  other  circumstanca,  he  could  not 
contrive  an  adequate  pretext  for  retiring  to  some  spot,  within  the 
seven  provinces  or  their  dependencies,  until  he  should  receive  an 
answer  from  his  goveriunent.  But  such  a  retirement  ought  to  be  so 
managed  as  to  have  nothing  of  the  air  of  design,  or  of  alienation  from 
the  existing  rulers.  It  would  be  a  delicate  step,  and  would  require 
to  be  thoroughly  matured.  "The  only  end  propo.sed  by  this  sugges- 
tion is  that  30U  may  shelter  yourself  from  inconvenient  importunities.'' 

Instruction  of  Fel).  27,  ]7i»o,  :MS.  Inst,  to  U.  S.  Ministers,  II.  323,  324. 

"A  war  Itetwoen  the  United  Provinces  and  France  broke  out  in  1793.  In  1795 
the  Stadtholder  was  driven  from  the  country  and  the  Batavian  Republic 
was  establishetl.  This  was  succeeded  by  the  Kingdom  of  Holland,  after 
which  the  country  was  incorjxjrated  into  the  French  Empire,  and 
remained  a  part  of  that  Empire  until  thealxlicalion  of  Napoleon.  On  the 
reconstruction  of  Europe  at  the  Congress  of-  Vienna,  a  new  Kingdom  was 
formed,  called  the  Kingdom  of  the  Netherlands,  in  which  was  included 
the  territories  which  had  formed  the  United  Provinces  of  the  Netherlands. 
The  new  Power  opened  Diplomatic  Relations  with  the  United  States  by 
sending  a  Minister  to  Washington."  (Davis,  Notes,  Treaty  volume,  1776- 
1887,  p.  1235.) 


§  45.]  RECOGNITION    OF    NEW    GOVERNMENTS.  129 

Mr.  Edward  Livingston,  as  Secretary  of  State,  in  a  note  to  Sir 

Charles  Vaughan.  the  British  minister,  April  30,  1833, 
Death   of  a   Sever-       ., 
said: 
eign. 

"It  has  been  the  principle  and  the  invariable  practice 
of  the  United  States  to  recognize  that  as  the  legal  Government  of 
another  nation  which  b}'  its  establishment  in  the  actual  exercise  of 
political  power  might  be  supposed  to  have  received  the  express  or 
implied  assent  of  the  people.''" 

Mr.  Rives,  acting  Secretary  of  State,  in  an  instruction  to  Mr. 
Roosevelt,  United  States  minister  to  the  Netherlands,  October  10, 1888, 
in  reply  to  inqiuries  suggested  by  the  dangerous  state  of  the  health  of 
the  King,  quotes  this  passage  as  setting  forth  the  doctrine  of  the 
United  States  "  in  relation  to  the  recognition  of  changes  in  the  dj'nastic 
succession  or  form  of  government  of  sovereign  states,"  and  adds: 
"'Should  the  illness  of  His  Majesty  *  *  *  unhappily  terminate 
fatalh',  you  will  of  course  recognize  any  form  of  succes^'on  duly  pro- 
vided for  by  the  procedure  of  the  Netherlands.  No  '  jltra  official' 
action  would  be  necessary.  A  change  of  sovereign  will,  according  to 
the  usual  procedure,  involve  sending  you  new  credentials,  to  be  pre- 
sented as  in  the  case  of  your  tirst  credence."'^ 

3.    ROMK    AX1>    THE    PaPAL   StATES. 
§   15. 

Mr.  Pickering,  Secretary  of  State,  in  an  instruction  to  Mr.  Satori, 

^      ^,.      United  States  consul  at  Rome,   March  28.   1799,    in 
Boman  Bepubhc.  .  .  ,        ^    . 

regard  to  the  new  Roman  Republic,  said  that  the  United 

States,  •■  sincerely  respecting  the  rights  of  self-government  of  all  other 

nations,"  ''do  not  interfere  in  their  internal  arrangements.    The  consuls 

of  the  United  States,  then,  wherever  they  are.  will  consider  it  to  be 

their  duty  to  respect  the  'powers  that  be,' and,  under  every  change  of 

government,  use  their  endeavor  to  protect  the  persons  and  property 

of  American  citizens." 

In  a  subsequent  instruction  of  June  11.  1799,  in  reply  to  a  question 

of  the  consul  whether  the   United  States  would   "acknowledge  the 

Roman  Republic."  Mr.  Pickering,  while  reaffirming  what  he  had  said 

on  the  28th  of  March,  and  directing  that  "due  deference"  be  paid  to 

the  "actual  government,"  added:  "In  ni}- former  letter  I  expressed 

a  wish  'that  the  Roman   Republic  was  a  self-governed  state.'     You 

know  that  it  is  not.     Formally  to  acknowedge  it  then,  would  only  be 

to  acknowledge  the  supreme  power  of  the  Fr>-nc]i  gtrieral  commanding 

in  Italy.'' '^ 


«MS.  Notes  to  Foreign  Legations,  V.  102. 

'^MS.  In.«t.  Xetherlan<ls,  XVI.  1. 

'■  MS.  Inst,  to  I'.  S.  Ministers,  V.  ss,  152. 

H.  Doc.  .551 9 


13<>  statp:s:  REaxiNiTiox  and  coxtixuity.  [§ -15. 

President  Polk  in  his  annual  message  of  December  7.  1847.  said: 
"The  Secretary  of  State  has  siilniiitted  an  estimate  to 
Papal  sutes.  defray  the  expense  of  opening  diplomatic  relations 
with  the  Papal  States,  The  interestingpolitical  events 
now  in  progress  in  these  States,  as  well  as  a  just  regard  to  our  com- 
mercial int^'rests.  have,  in  my  opinion,  rendered  such  a  mea.sure  highly 
ex}>edient."  By  the  act  of  March  27.  1848.  Congress  made  an  appro- 
priation for  a  charge  d'atJ'aires. "  In  the  instructions  to  this  official 
there  is  the  following  passage: 

"There  is  one  consideration  which  you  ought  always  to  keep  in  view 
in  your  intercourse  with  the  Papal  authorities.  Most,  if  not  all.  the 
Governments  which  have  diplomatic  representatives  at  Kome  are  con- 
nected with  the  Pope  as  the  head  of  the  Catholic  Church.  In  this 
resj^ect  the  Government  of  the  United  States  occupies  an  entirely 
different  position.  It  possesses  no  power  whatever  over  the  question 
of  religion.  All  denominations  of  Christians  stand  on  the  same  foot- 
ing in  this  i-ountrv:  and  every  man  enjoys  the  incstimahle  right  of 
worshiping  his  God  according  to  the  dictates  ()f  his  own  conscience. 
Your  efforts  therefore  will  he  devoted  exclusively  to  the  cultivation 
of  the  most  friendly  civil  relations  with  the  Papal  (Tovernment.  and  to 
the  extension  of  the  commerce  l>etween  the  two  countries.  You  will 
carefully  avoid  eviMi  the  :ippearanc»^  of  interfering  in  ecclesiastical  (pies- 
tions.  whether  these  relate  to  the  United  States  or  to  any  other  portion 
of  the  world.  It  might  he  proper,  should  y<»u  deem  it  advisable,  to 
make  these  views  known,  on  some  suitable  occasion,  to  the  Papal  Gov- 
ernment, so  that  there  may  be  no  mistake  or  misunderstanding  on  this 
subject."  -' 

Shortly  after  these  instructions  were  given  a  revolution  occurred  at 
Rome  and  th<»  government  of  the  Pope  was  displaced.  The  Govern- 
ment of  the  United  States,  however,  considering  "the  speedy  restora- 
tion of  the  Pope  highly  probable,  if  not  a))solutely  certain."  instructed 
its  charge  d'affaires,  while  proceeding  immediately  to  Rome  and  g-ath- 
ering  all  the  information  ol)tainable.  to  withhold  his  letter  of  <'redenee 
till  he  should  receive  specific  dirt'ctioii>  as  to  the  minister  of  foreign 
affairs  to  whom  it  should  be  delivered.' 

Subsetpiently.  the  situation  having  apparently  become  ■'more  and 
more  complicated  -and  entangled."  it  was  left  t(t  his  discretion,  in  order 
to  avoid  any  unnecessary  delay,  to  present   his  letter  of  credence   to 


"9  Stat.  21H.  Forthe  del  latf  soil  this  act.  see  \\<]>.  toCoiis.'.  <i]<'}H-,  :>OC<)nfr..  1  t^e.^.*., 
1S47-S.  ].j..  -Kyi^UK  4:>7,  442. 

''Mr.  Buchanan.  Sec.  of  Stale.  t<>  Mr.  Martin.  April  "i.  ls4s.  Ms.  Inst.  Papal  States. 
I.  :;. 

■Mr.  IJnehanan,  .Se<-.  ..f  State.  1..  Mr.  (as.-.  Kel>.  l»i.  1S49.  MS.  Inst.  Papal  .<tate.«, 
I.  n. 


§46.]  RECOGNITION    OF    NEW    GOVERNMENTS.  131 

the  niinister  of  foreign  affairs  of  the  pi'ovi.sional  government,  or 
to  withhold  it  some  time  longer." 

When,  in  1866,  the  diplomatic  representative  of  the  United  States  at 
Rome  looked  forward  to  a  possible  political  revolution  in  the  States  of 
the  Church,  to  the  head  of  which  he  was  accredited,  he  was  instructed: 
"Should  the  sovereignty  at  Rome  undergo  a  revolutionary  change,  you 
will  suspend  the  exercise  of  diplomatic  functions  within  the  territory 
in  which  a  new  government  shall  have  been  established.  Should  the 
present  govei'nment  remove  and  take  up  a  residence  in  any  other  place, 
whether  in  or  out  of  Italy,  you  will  not  be  expected  to  follow  it  until 
the  case,  as  it  shall  then  exist,  shall  have  received  the  attention  of  the 
President,  and  until  his  views  thereupon  shall  have  been  made  known. 
In  the  case  of  such  removal,  you  will  either  remain  at  Rome,  or  take 
up  your  temporary'  residence  in  some  adjacent  country,  as  in  your  dis- 
cretion shall  seem  expedient.''''' 

4.  Spain. 

§46. 

After  the  setting  up  of  the  Napoleonic  government  in  Spain,  and 

the  deposition  of  Charles  IV. ,  the  Central  Jiuita,  which 

Napoleonic   Govern-  ^.^^  formed  in  the  name  of  Ferdinand  VII.  to  maintain 

men  .     uspension  ^j^^  independence  of  the  nation,  sent  to  the  United 

of  Decision.  •        t    i  •  • 

States  as  its  diplomatic  representative  the  Chevalier 

de  Onis.  On  submitting  his  credentials  he  was  invited  by  the  Secre- 
tary of  State  to  a  conference,  in  which  he  was  informed  that  as  the 
United  States  had  "'deliberately  determined  to  remain  neutral  during 
the  present  war  in  Europe,  and  to  avoid  every  act  whatever  which 
might  have  a  tendency  to  aft'ord  to  either  of  the  belligerents  even  a 
pretext  of  complaint,  the  President  could  not  consistently  receive  him, 
while  it  is  not  known  in  whose  possession  the  sovereignty  of  Spain 


«Mr.  Clayton,  Sec.  of  State,  to  Mr.  Cass,  June  25, 1849,  MS.  In^t.  Papal  States,  I.  14. 

Mr.  Clayton,  as  Sec.  of  State,  in  an  instruction  to  'Sir.  Donelson,  minister  to  Prus- 
sia, July  8,  1849,  MS.  Inst,  to  Prussia,  XIV.  165,  said: 

"  We,  as  a  nation,  have  ever  been  ready,  and  willing,  to  recognize  any  Ciovernment, 
(h;  facto,  which  appeared  capable  of  maintaining  its  power;  and  should  either  a 
repulilican  form  of  government,  or  that  of  a  limited  monarchy  (founded  on  a  popu- 
lar and  permanent  basis)  be  adopted  by  any  of  the  States  of  (iermany,  we  are  bound 
to  be  the  first,  if  i^ossible,  to  hail  the  birth  of  the  new  Government,  and  to  cheer  it 
in  every  progressive  movemi'ut  that  has  for  its  aim  the  attainment  of  the  ])riceless 
and  countless  blessings  of  freedom." 

'>Mr:  Seward,  Sec.  of  State,  to  Mr.  King,  Aug.  16,  1866,  :\1S.  Inst.  Papal  States, 
1.97.  See,  as  to  stationing  an  American  ship  of  war  at  Cavita  Vecchia,  in  accord- 
ance with  the  wish  of  the  cardinal  secretary  of  state,  ]\Ir.  Seward  to  I\h-.  King,  Nov. 
80  and  Pec.  8,  1866,  id.  101,  104. 


132  states:  recognition  and  continuity.  [§  J:^- 

actiuiUy  is."  The  President  would  not  take  it  upon  himself  ''to  con- 
sider the  ({uestion  de  }>(/'>  :'^  he  would  ])e  content  "in  merely  looking 
at  the  question  defiwto;''  but,  until  "this  (|uestion  of  possession"'  was 
"distinctly  settled."  he  would  not  "by  any  act  whatever  evince  a  dis- 
position prematurely  to  recognize  in  either  claimant  the  sovereignty 
of  Spain."  These  views  were  repeated  to  the  Chevalier  de  Onis  in  a 
subseciuent  conference,  in  which  he  was  also  informed  that  as  it  was 
"found  to  l>e  impossible"  to  give  "a  formal  written  answer"  to  his 
communications  "without  recognizing  in  some  degree  his  public  char- 
acter as  well  as  that  of  the  Supreme  Junta.  *  *  *  such  an  answer 
could  not  be  given."  Mr.  Erving.  who  had  been  representing  the 
United  States  as  charge  d'affaires  at  Madrid,  was  at  the  same  time 
instructed  that  his  communications  with  the  Supreme  Junta  must  be 
"informal."  He  was  to  be  careful  not  to  commit  his  Government;  and 
the  question  of  remaining  or  withdrawing  was  left  to  his  sound  discre- 
tion, to  l)e  exercised  according  to  what  should  take  place  after  the 
receipt  of  the  Chevalier  de  Onis's  dispatches  by  the  Supreme  Junta." 
"There  appears  on  the  tiles  and  records  of  this  Department  no  evi- 
dence that  Joseph  Bonaparte  was  ever  recognized  by  this  Government 
as  King  of  Spain  d<'  jurf  or  <h^  faetn.  Extracts  are  herewith  inclosed 
of  two  letters  from  the  Secretary  of  State,  one  to  G.  W.  Erving,  in 
180tt.  and  the  other  to  Don  Pedro  Cevallos,  in  1815.  which  will  show 
the  course  adopted  by  this  Government  during  the  late  war  in  Spain." 
Mr.  Adams,  Sec.  ..f   State,  to  Mr.  White.  Jan.  1«,  1S22,  19  :MS.  Doin.  I^t.  236. 

"During  the  period  while  this  Government  declined  to  receive  Mr. 

,     .r.     .•        Onis   as  the  minister  of  Spain,  no  consul    received 
Consalar  Functions.  * 

an  exe([uatur  under  a  conunission  from  the  same 
authority.  The  Spanish  consuls  who  had  l)een  received  ))efore  the  con- 
test for  the  government  of  Spain  had  arisen,  were  suffered  to  continue 
the  exercise  of  their  functions  for  which  no  new  recognition  was 
necessary." 

Mr.  A.laiii.<.  See.  of  State,  t<>  the  Pre.«i(lent.  Jan.  2S,  ISU).  Am.  State  Paji.  For. 
Kel.  IV.  413. 

In  an  in)signe<l  i>ai)er  delivered  to  Mr.  Chacon,  vioe-coni=ul  of  Spain  at  Alex- 
andria, March  IS*,  1S14,  Mr.  INIonroe  stated  that  the  I'nited  States  would 
ackno\vled>re  the  jrovernment  of  Spain,  whenever,  the  contest  for  it  having 
terminated,  it  wa.«  established  in  some  i)ermanent  and  indei)endent  form; 
and  that  the  rnite<l  State.s  would  <lo  this  '"  without  consulting  or  conunu- 
nicating  with  any  other  jK)wer."  This  last  ol»servation  wa.«  made  with 
reference  to  an  intimation  that  the  British  commissioners,  in  the  negotia- 
tions then  exjK'cted  to  Ix-  hel<l  at  <  ;ottenl)urg,  '"would  insist  on  the 
acknowledgment  of  the  government  of  Spain  hy  tiie  United  States  as  a 
preliminary  condition  to  the  formation  of  any  treaty."  i^MS.  Notes  to  For. 
Leg.  II.  149.) 

"Mr.  Smith.  Sec.  of  State,  to  Mr.  Erving,  Nov.  1,  1S<W,  MS.  Inst,  to  U.  S.  Ministers, 
VII.  61. 


§•16.1  RECOGNITION    OF    NEW    G0VERNMP:NTS.  138 

June  9, 1813,  Mr.  Monroe,  a?  Secretary  of  State,  yrave  instmetiun.s  tu  Mr.  Anthony 
Morris,  a.s  a  contidential  agent  to  the  regency  at  Madrid.  The  instructions 
referred  to  the  efforts  made  to  settle  <iuestions  with  Spain  as  to  claims  and 
boundaries;  to  the  recent  taking  possession  of  West  Florida,  wiiich 
"belonged"  to  us;  and  to  the  danger  of  British  encroachments  in  Ea.st 
Florida.  The  "special  object"  of  his  mission  \va«  to  impres.s  on  the 
regency  the  friendly  j>olicy  of  the  I'nited  States.  The  I'nited  States  con- 
sidered the  question  of  West  Florida  as  "settled,"  but  would  like  to 
acquire  East  Florida  either  as  an  indemnity  for  claims,  or  in  trust  subject 
to  future  negotiation.  The  unfriendly  course  of  the  Chevalier  de  Onis 
was  also  mentioned.  October  11,  1814,  Mr.  Monroe  wrote  to  Mr.  Morris, 
saying  that  his  conduct  had  been  entirely  satisfactory,  and  requesting  him, 
as  Mr.  Erving  had  been  appointed  minister  to  Spain,  to  turn  over  his 
papers  to  him  and  communicate  to  him  any  information  that  lie  had 
obtained.     (The  Nation,  April  U,  1898,  vol.  66,  pp.  281-283.) 

When  the  Napoleonic  war.s  came  to  an  end.  and,  the  contest  in  Spain 

•E.    J-      J  TTTT     having- ceased.  "Ferdinand  wa.s  recoofnized and  received 
Ferdinand  VII.  .        „  .  .  . 

by  the  nation. ''-the  President,  seeing  '*  with  .satisfaction 

that  the  period  had  arrived,  when  the  ancient  relations  with  Spain 

might   be   renewed,   without    compromitting    the    neutrality  of    the 

United  States/'  appointed  Mr,  Erving  as  minister  to  that  .sovereign  and 

directed  him  forthwith  to  repair  to  Madrid  in  that  character.     The 

Chevalier  de  Onis,  who  had  continued  to  reside  in  the  United  States, 

was  afterwards  received  as  minister  from  Spain,  a  question  as  to  his 

per.sonal  acceptabilit}',  which  was  ultimately  waived,  having  delayed 

his  reception. 

Mr.  Monroe,  Sec.  .of  State,  to  Don  Pedro  Cevallos,  Spanish  minister  of  State 
July  17,  181.5,  :MS.  notes  to  For.  Leg.  II.  106. 

The    Duke   of   Aosta   having   been  elected  by   the 
Cortes,  November   16,  1870,  as  King  of  Spain,  Mr. 

Fish  wrote: 

'•We  have  always  accepted  the  genei"al  acquiescence  of  the  people 
in  a  political  change  of  government  as  a  conclusive  evidence  of  the 
will  of  the  nation.  When,  however,  there  has  not  been  such  acquies- 
cence, and  armed  resistance  has  been  shown  to  changes  made  or 
attempted  to  be  made  under  the  form  of  law.  the  United  States  have 
applied  to  other  nations  the  rule  that  the  organization  which  has  pos- 
session of  the  national  archives  and  of  the  traditions  of  (xovernment, 
and  which  has  ])een  inducted  to  power  under  the  forms  of  law.  nuist 
be  presumed  to  ])e  the  exponent  of  the  desires  of  the  people  imtil  a 
a  rival  political  organization  shall  have  established  the  contraiy.  Your 
cour.se  in  the  present  ca.se  will  be  governed  by  this  rule. 

"Should  there  be  circumstances  which  lead  you  to  doubt  the  pro- 
priety of  recognizing  the  Duke  of  Aosta  as  King  of  Spain,  it  will  be 
ea.sy  to  communicate  with  the  Department  by  telegraph  and  ask  instruc- 
tions. Should  there  be  no  such  circumstances,  the  general  policy  of 
the  United  States,  as  well  as  their  interests  in  the  present  relations 


134  r^TATES:    RECOGNITION    AND    CONTINUITY.  [§  ^7. 

with  Si)aiii.  c-hU  for  an  early  and  cht'ort'ul  rocojinition  of  tho  change 
which  the  nation  has  niadc." 

:Mr.  Fish,  Sec.  of  State,  to  Mr.  Sickles,  Dw.  l(i.  1870,  For.  Kel.  1871,  p.  742. 

February  lo.  1873.  General  Sickles  reported   that   the  King  had 
announced  to  the  cabinet  his  desire  to  abdicate.     Next 

e     epu   ic.  an    ^^^^^  ^^^^  C\)rtt>s  accepti^l  his  abdication,  and  adopted  a 

Its  Successor.  "         .  ,  . 

republican  form  of  government.  Fel)ruary  12,  Gen- 
eral Sickles  was  instructed  to  recognize  the  republican  government  so 
soon  as  it  was  ■•fully  established  and  in  possession  of  the  power  of  the 
nation."  He  was  othciallv  received  by  Chief  Executive  Figueras  on 
the  loth.  The  Congress  of  the  United  States,  by  a  joint  resolution, 
extended  its  congratulations.'^'  January  3,  1871,  President  Castelar 
resigned,  the  Cortes  was  dispersed  by  military  force,  and  a  provisional 
government  was  formed  luider  Marshal  Serrano.''  May  80,  1874,  Mr. 
Cushing,  who  had  succeeded  General  Sickles  as  minister  to  Spain,  pre- 
sented his  credentials  to  this  government.'' 

5.    PORTCGAL. 

>j  47. 

Noveml)er  2.  1826,  Mr.  Barrozo,  the  Portuguese  charge  d'affaires, 
„.      ,       informed  the  Secretarv  of  State  of  the  United  States 

Dom  Miguel.  i        .     i  '  t  •       i 

that  on  the  27th  of  the  preceduig  April  the  constitu- 
tion, granted  1)V  King  John  VI.  in  182t).  had  been  sworn  to  by  the 
Infant  Regent  and  accepted  hy  the  nation.  On  the  28th  of  May,  1828, 
he  communicated  to  the  Secretarv  of  State  a  letter  from  the  Infante 
Dom  ^liguel  to  the  President,  stating  that  he  had  assumed  the 
regency  of  Portugal  in  the  name  of  his  brother.  Dom  Pedro  IV.,  as 
King.  On  the  ISth  of  fluly  in  the  same  year  Mr.  Barrozo  transmitted 
to  the  Secretarv  of  State  the  text  of  two  decrees  of  the  Regent.  Dom 
Miguel,  and  diM  hiring  that  he  was  unable  longer  to  recognize  "a  gov- 
ernment which,  acting  in  opposition  to  the  constitution,  pretends  like- 
wise to  usurp  till'  sacred  and  inalienable  rights  of  His  Most  Faithful 
^lajesty  Dom  Pedro  IW."  announced  that  he  would  immediately 
cease  to  exercise  his  functions  as  diplomatic  agent  from  that  (Jovern- 
ment,  and  would  submit  his  course  to  His  Most  Faithful  Majesty  in 
order  that  he  might  rccei\  e  the  royal  directions.  On  the  28th  of 
August  ^Ir.  Barrozo  advised  the  Secretarv  of  State  that  a  provisional 
junta  had  l)een  installed  at  Oporto  on  the  20th  of  ^lay  for  the  purpose 
of  maintaining  the  legitimate  authority  of  Dom  Pi^dro  as  King  of 
Portugal  under  the  constitution  of  1S2*).  hi  thi>^  note  he  also  stated 
that  when  he  ceased  to  exercise  his  diplomatic  functions  he  did  not 


«For.  Rel.  187o,  II.  887-9:50. 

''For.  Rel.  1874,  852. 

'Mr.  Cii.-hing  to  Mr.  Fish,  June  1,  1874,  For.  Rel.  1874,  885.  See,  particularly,  the 
dispateh  of  Mr.  Cushing,  No.  76,  Aug.  14,  1874,  id.  904,  on  the  recognition  by  the 
United  States  of  df  facto  government:^  in  Spain,  and  the  salutary  effect  of  this  rule. 


§47.]  RECOGNITION    OF    NEW    GOVERNMENTS.  135 

consider  himself  as  thereby  ceasing  to  he  the  charge  d'artaires  of  His 
Most  Faithful  Majesty;  that  although  he  iiad  previously  recognized 
the  authority  of  the  provisional  junta,  he  desired  to  l)e  officially 
informed  of  its  installation  in  order  to  resume  his  functions,  and  that, 
having  received  such  information,  and  tinding  the  proceedings  of  the 
junta  to  accord  with  the  constitution,  he  ))elieved  it  to  be  his  duty  to 
resume  his  diplomatic  functions  as  representative  of  the  legitimate 
King.  This  note  was  received  at  the  Department  of  State  in  the 
absence  of  the  Secretary,  and  was  acknowledged  l)y  the  chief  clerk 
with  the  simple  statement  that  it  would  be  laid  before  Mr.  Clay  on  his 
return.  On  the  6th  of  November.  1S28,  Mr.  Barrozo,  as  charge 
d'affaires  of  Portugal,  addressed  a  note  to  the  Secretary  of  vState, 
informing  him  of  the  arrival  in  England  of  the  young  Queen  of  Por- 
tugal, Dona  Maria  de  Gloria;  and  on  the  27th  of  the  same  month, 
still  styling  himself  charge  d'atfaires.  announced  the  abdication  of 
Dom  Pedro  in  favor  of  his  daughter.  Dona  Maria  de  Gloria.  These 
notes  remained  unanswered,  and  the  only  eommunication  made  by  the 
Department  of  State  to  Mr.  Barrozo,  as  charge  d'affaires  of  Portu- 
gal, after  his  letter  of  July  IS,  1S:>S,  was  a  circular,  of  March  3.  1829, 
written  b}'  the  chief  clerk  to  members  of  the  diplomatic  corps,  invit- 
ing them  to  attend  the  inauguration  of  the  President.  No  official 
communication  was  afterwards  made  to  or  received  from  Mr.  Barrozo 
in  his  character  of  charge  d'affaires;  but  on  two  occasions,  when  cir- 
culars were  sent  to  the  members  of  the  diplomatic  corps,  his  name  was 
omitted.  From  informal  conversations  with  him  the  Secretary  of 
State  understood  it  to  be  his  intention  to  await  in  the  United  States 
the  result  of  events  at  home  and  the  decision  of  the  Govermnent  of 
the  United  States  on  the  question  of  recognition.  October  3.  1S29, 
Mr.  Barrozo.  as  consul-general  of  Portugal,  announced  the  cessation 
of  his  consular  functions,  returned  his  exeijuatur.  and  recpiested  his 
passports,  which  were  sent  to  him  on  the  sth  of  the  month.  This  step 
on  the  part  of  ]\Ir.  Barrozo  was  due  to  circumstances  the  narration  of 
which  inunediately  follows. 

August  y<>.  1828,  Mr.  Torlade  d'Azambuja  presented  himself  at  the 
Department  of  State  and  delivered  to  the  chief  clerk  his  original  letter 
of  credence,  which  was  returned  to  him  at  the  same  interview;  and, 
with  a  note  of  the  same  day.  he  connuunicated  to  the  Department  a 
copy  of  his  credentials  in  the  form  of  a  letter  from  the  Viscount 
Santarem,  minister  of  foreign  affairs  of  Portugal,  to  the  Secretary  of 
State  of  the  United  States,  of  March  :M.  1828.  introducing  him  as  the 
appointee  of  His  Highness  the  Infant  Regent  of  Portugal  and  the 
Algarves  as  charge  d'affaires  of  Portugal  near  the  Government  of 
the  United  States.  The  change  which  had  then  taken  place  in  the 
Government  of  Portugal  rendered  it  necessary  that  Mr.  Torlade  should 
present  new  credentials,  and  his  recognition  was  therefore  delayed. 
March  18,  1829,  Mr.  Torlade  connuunicated  to  the  Secretary  of  State 


lS(i  states:  recognition  and  continuity.  [§  -1:7. 

a  copy  of  a  new  credential  letter,  dated  December  '2'd,  1828,  signed  by 
the  Viscount  Santarem  and  introducing  him  as  the  charge  d'affaires 
of  His  Most  Faithful  Majesty  Doni  Miguel,  and  solicited  an  interview 
for  the  purpose  of  presenting  the  original."  His  note  remaining  un- 
answered, Mr.  Torlade  on  the  25th  of  April  addressed  a  note  to  the 
Secretary  of  State,  calling  attention  to  it  and  renewing  his  request  for 
an  interview.  This  communication  likewise  remaining  unanswered, 
Mr.  Torlade  on  the  28th  of  September,  1829,  addressed  to  the  Secre- 
tary of  State  another  note,  setting  forth  the  circumstances  attending 
his  residence  in  Washington  and  again  urging  that  he  be  admitted  to 
present  his  original  letter  of  credence. 

About  the  same  time  Mr.  Rebello,  charge  d'affaires,  from  Brazil, 
interposed  a  strong  remonstrance  against  Mr.  Torlade's  reception,  on 
the  ground  that  Dom  ^liguel  was  an  usurper  of  the  throne  of  Dona 
Maria  H..  Queen  of  Portugal,  and  therefore  ought  not  to  be  recog- 
nized by  civilized  states;  that  the  rights  of  that  Princess  were  indis- 
putable, as  ])eing  immediately  derived  from  her  father,  Dom  Pedro  I., 
Emperor  of  Bi-azil,  the  hereditary  and  legitimate  sovereign  of  Por- 
tugal; and  that  a  recognition  of  Dom  Miguel  might  jeopard  the  exist- 
ing friendly  relations  between  the  United  States  and  Brazil.  Under 
these  circumstances  Mr.  Van  Buren,  who  had  then  become  Secretary 
of  State,  informed  Mr.  Torlade.  in  a  personal  conference  at  the 
Department  of  State,  that  the  President  would  wait  for  information 
from  Mr.  Brent,  charge  d'affaires  of  the  United  States  in  Portugal, 
Sis  to  the  actual  situation  in  Portugal  and  its  probable  duration,  before 
determining  whether  he  should  be  recognized  in  his  public  character; 
and  Mr.  Brent  was  instructed  to  make  with  all  possible  dispatch  a  full 
report  on  the  subject.^  From  this  report  it  appeared  ''that  Dom' 
Miguel  occupies  the  throne  of  Portugal  as  absolute  King;  that, 
throughout  the  whole  realm  without  any  exception,  his  authority  as 
such  is  recognized  and  acknowledged,  and  that  he  exercises  over  it 
complete,  uncontrolled,  and  exckisive  dominion."''  *'The  moment 
then  appeared  to  have  arrived."  said  Mr.  Van  Buren,  *'  when  this  Gov- 
ernment could  no  longer  forl)ear  from  taking  a  determination  upon  the 
subject.  Such  a  course  was  urged  by  every  consideration  of  exj^edi- 
ency.  The  two  Govermnents  l)eing  unrepresented  near  each  other 
by  regularly  accredited  agents,  all   diplomatic   intercourse  was   sus- 

«  Mr.  Van  Buren,  Sec.  of  State,  to  ^Ir.  Brown,  chargrt'  d'affaires  to  Brazil,  Oct.  20, 
1830,  MS.  In.«it.  Am.  States,  XIV.  101. 

'^Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Brent,  charge  d'affaires  in  Portugal,  April 
4,  1829,  MS.  In.«t.  to  U.  S.  Ministers,  XIII.  2. 

''Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Tudor,  charge  d'affaires  at  Kio  de  Janeiro, 
Sept.  4,  1829,  MS.  Inst,  to  U.  S.  Ministers,  XIV.  28. 


§  -i^-]  RECOGNITION    OF    NEW    GOVERNMEMTS.  137 

pended.  The  authority  of  the  former  Portug-ue.se  consuls  in  our  ports 
was  no  longer  respected  in  Portugal,  and  our  conunerce.  left  unpro- 
tected, became  exposed  to  all  the  dangers  and  delays  resulting  from 
the  want  of  consular  documents,  and  the  absence  of  the  public  min- 
ister. But,  even  apart  from  the  foregoing  considerations,  the  course 
which  had  ever  before  been  pursued  by  the  United  States  of  always 
recognizing  the  government  existing  de  facto^  and  which  had  but 
recently  led  to  the  acknowledgment  of  that  of  Brazil,  left  them  no 
choice  in  the  instance  under  consideration,  and  Mr.  Torlade  was  con- 
sequently, on  the  2nd  of  October,  1829,  after  more  than  a  year's  urgent 
solicitation,  admitted  to  present  his  credentials,  and  has  ever  since 
resided  here  as  the  accredited  representative  of  the  government  of 
Dom  Miguel,  King  of  Portugal.  Mr.  Brent,  our  charge  d'affaires  at 
Lisbon,  was  soon  after  directed  to  resume  his  functions,  and  a  regular 
diplomatic  intercourse  between  the  two  Governments  has  been  the 
result  of  these  measures. "  " 

6.  German'  Empire. 

§48. 

By  a  letter  addressed  to  the  Emperor  March  !♦>,  1871,  the  President 
of  the  United  States  formally  recognized  the  German  Empire.^ 

7.  Colombia. 

"Your  business  is  solely  with  the  actual  Government  of  the  country 
where  you  are  to  reside,  and  you  should  sedulouslj'' 

Instructions. 


Mr.  Van  Buren's  -,  ii!ii  i.  ^  ^  i.     i. 

endeavor,  by  a  frank  and  courteous  deportment,  to 


conciliate  its  esteem  and  secure  its  contidence.  So  far 
as  we  are  concerned,  that  which  is  the  Government  de  facto  is  equally 
.so  de  jure.  Should  any  change  in  the  Government  of  Colombia  take 
place,  rendering  your  credentials  inapplicable,  you  will  be  at  no  loss 
for  the  proper  explanation;  and  should  the  new  Government  refuse  to 
receive  you  without  others,  in  another  form,  you  will,  of  course,  trans- 
mit the  earliest  notice  of  the  circumstance  to  this  Department  that 
what  is  wanting  may  be  supplied.  In  the  meantime  it  may  be  expected 
that  informal  connnunications  will  enable  you  to  pursue  with  due  effect 
the  objects  claiming  your  attention.'' 

Mr.  Van  Buren,  Sec.  of  State,  to  :Mr.  Moore,  June  9,  1829,  MS.  Inst.  Am.  St., 
XIV.  19. 

«Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Brown,  charge  d'affaires  to  Brazil,  Oct. 
20,  1830,  MS.  Inst,  to  Am.  States,  XIV.  101.  "The  Poi:>e,  the  Emperor  of  Russia, 
and  President  Jackson  were  the  f)nly  authorities  on  earth  which  ever  recognized 
Dom  Miguel  as  King  of  Portugal."  (Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Rush, 
March  31,  1848,  supra,  §  43.) 

&MS.  Communications  to  Foreign  Sovereigns  and  States,  199;  S.  Doc.  40,  54  Cong. 
2  sess.  8. 


138  states:  recognition  and  continuity.  [§49. 

From  the  sprinj^  of  ISHI  till  June.  1S63.  when  "the  civil  war 
*     *     *     havint^  ended."   there   appeared  to  be   "an 

Mosquera     Govern-         .  ,  .  ,.  ^i  i     •      ^i  •    •         i 

^.    „       universal  acqiiiescence  or  the  people  in  the  provisional 

ment  and  Its  Sue-  ^,  ^       ^^  ^ 

cesser.  government"   established   l)v  General    Mosquera    m 

Coloml)ia.  no  oovernment  in  that  country  was  officially 
recognized  l)v  the  Tnited  States." 

In  August.  1S()7.  there  appearing  to  be  "a.  general  consent  of  the 
Col()m])ian  people  to  the  change  lately  effected  by  the  recent  move- 
ments at  Bogota,  by  which  General  Mosquera,  the  President,  was 
deprived  of  his  power  and  Mr.  Santos-Acosta  substituted  in  his  place," 
the  President  of  the  United  States  did  "'not  feel  authorized  to  with- 
hold his  recognition  of  the  present  di-  facto  executive  head  of  the  Gov- 
ernment of  Coloml)ia:"  and  the  minister  of  the  United  States  at 
Bogota  was  instructed  to  present  his  credentials  ""at  the  earliest 
convenient  opportunity."'' 

July  31.  1H(»0.  Senor  Marroquin.  Vice-President  of  Colombia,  being 
then  at  Bogota,  assumed,  with  the  concurrence  of  the 

Marroquin  Govern-  ,  j., ,  .  . ,  •  e  ^u 

■■«««  commanders  of  the  garrison,  the  exercise  or  the  exec- 
utive  power  and  named  a  new  ministry.  }sext  day  he 
issued  a  manifesto,  assigning  as  the  reason  for  his  act  that  the  Presi- 
dent. Senor  Sanclemente,  was,  by  reason  of  his  residing  away  from 
the  capital,  unable  to  attend  to  his  public  duties,  and  that  it  was 
desirable  to  end  the  civil  war  then  going  on.  The  new  minister  of 
foreign  affairs.  Senor  Martinez  Silva.  notified  the  diplomatic  corps  of 
his  appointment,  but  soon  afterwards  the  minister  of  foreign  affairs 
of  President  Sanclemente  gave  notice  that  the  government  of  the 
latter  was  still  in  existence,  at  the  same  time  communicating  to  the 
diplomatic  corps  a  protest  of  President  Sanclemente.  who  was  then 
held  as  a  prisoner  by  a  Marroquin  force  at  his  temporary  residence  a 
day's  journey  from  the  ca))ital.  The  diplomatic  corps,  through  its 
secretary,  advised  Sefior  Martinez  Silva,  orally,  of  the  receipt  of  his 
note,  and  of  its  intention  to  await  developments.  Senor  Palacio.  min- 
ister of  government  of  President  Sanclemente.  who  was  taken  pris- 
oner with  the  latter,  was  brought  to  Bogota. 

September  s.  IIMmi.  Mr.  Hill.  Acting  Secretary  of  State,  sent  to  Mr. 
Hart.  United  States  minister  at  Bogota,  the  followinu-  instruction:'' 


"Mr.  Seward,  Sw.  «>f  State,  to  Mr.  Burton,  May  29.  IStil,  MS.  Innt.  Colombia, 
XVI.  1;  i^aine  to  same,  July  18,  18«il,  i.l.  7;  Sept.  10,  1S61.  id.  12;  Sept.  24,  1861, 
id.  Iti;  Dec.  6,  18«1,  id.  18;  Mr.  Burton  to  Mr.  Seward,  Dec.  2o,  1861,  MS.  De.«'patches, 
('oloml)ia;  same  to  same,  Jan.  7.  1862,  id.;  Mr.  Seward  to  Mr.  Burton,  Jan.  29,  1862, 
MS.  Inst.  Colombia,  XVI.  24;  same  to  same,  Feb.  19,  1862,  id.  27;  June  30,  1863, 
id.  76.  The  recognition  of  a  provisional  government  in  Salva«.lor  wa.-^  deferred  on 
similar  grounds.  (Mr.  Seward,  Sec.  of  State,  to  Mr.  Partridge,  Nov.  28,  1863,  Jan. 
2,  bS^M,  MS.  Inst.  Am.  States,  XVI.  ?,m,  399.) 

''Mr.  Seward,  Sec.  of  State,  to  Mr.  Sullivan.  Aug.  17,  1867,  MS.  Inst.  Colombia, 
XVI.  231. 

F(jr.  Kel.  1900.  410. 


§  49.]  RECOGNITION    OF    NEW    GOVERNMENTS.  139 

"The  policy  of  tho  United  States.  iiiinouiK-ed  tuid  practiced  upon 
occasion  for  more  than  a  century .  has  been  and  is  to  refrain  from  act- 
ing upon  contiicting  claims  to  the  de  jure  control  of  the  executive 
power  of  a  foreign  state;  but  to  l)ase  the  recognition  of  a  foreigii 
government  solely  on  its  de  facto  a))ility  to  hold  the  reins  of  adminis- 
trative power.  When,  by  reason  of  revolution  or  other  internal 
change  not  wrought  by  regular  constitutional  methods,  a  conflict  of 
authority  exists  in  another  country  whereby  the  titular  government 
to  which  our  representatives  are  accredited  is  reduced  from  power  and 
authority,  the  rule  of  the  United  States  is  to  defer  recognition  of 
another  executive  in  its  place  until  it  shall  appear  that  it  is  in  posses- 
sion of  the  machinery  of  the  state,  administering  government  with  the 
assent  of  the  people  thereof  and  without  substantial  resistance  to  its 
authority,  and  that  it  is  in  a  position  to  fulfill  all  the  international  obli- 
gations and  responsi))ilities  incumbent  upon  a  sovereign  state  under 
treaties  and  international  law.  When  its  establishment  upon  such  de 
facto  basis  is  ascertained,  it  is  recognized  by  directing  the  United 
States  representative  formally  to  notify  its  proper  minister  of  his 
readiness  to  enter  into  relations  with  it,  and  thereafter  b}-  the  still 
more  formal  process  of  receiving  and  issuing  new  credentials  for  the 
respective  diplomatic  agents. 

""Pending  such  de  facto  entrance  into  relations,  the  agents  of  the 
United  States  have  the  right  to  demand  of  any  local  authority  assum- 
ing to  exercise  power  and  control  protection  of  American  life  and 
propert}'  from  injury  or  damage  and  respect  for  all  American  rights 
secured  by  treaty  and  international  law,  and  their  so  doing  is  to  be 
held  to  be  an  act  of  necessity,  without  prejudice  to  the  ulterior  ques- 
tion of  international  relations  as  ]>etween  one  sovereign  government 
and  another,  and  equally  without  prejudice  to  our  sovereign  right  to 
exact  reparation  from  the  responsible  perpetrators  of  any  wrong 
toward  this  Government,  its  citizens,  and  their  interests. 

''Although  the  probability  of  interference  with  telegraphic  conmmni- 
cations  in  Colombia  may  delay  your  reception  of  a  cabled  message.  I 
have  embodied  the  essentials  of  this  instruction  in  the  following  cipher 
message  telegraphed  to  you  this  day: 

""When  new  government  is  in  possession  of  machinery  of  adminis- 
tration, maintaining  order,  executing  the  laws  in  Colombia  with  general 
assent  of  the  people,  and  responsibly  fulfilling  international  obligations, 
3-ou  may  notify  readiness  to  enter  into  relations.*** 

Notwithstanding  the  efforts  of  President  Sanclemente*s  adherents  to 
invoke  popular  support,  they  were  luiable  to  take  any  effective  meas- 
ures toward  his  restoration,  and  the  Marro([uin  government,  aided  by 
the  apparent  decline  of  the  civil  war,  seemed  daily  to  gain  strength. 
September  15,  1900.  the  ministers  of  France,  Germany.  Great  Britain, 
and  Spain,  joining  with  the  minister  of  the  United  States,  each  sent  to 


140  >iTATES:    RECOGNITION    AND    CONTINUITY.  [§  50. 

Sefior  Martinez  Silvji  u  foriiial  ac-knowled^iiient  of  the  note  wherein 
he  notified  them  of  his  appointment  and  of  the  assumption  by  the  vice- 
president  of  the  executive  power,  thus  establishing  relations  with  the 
new  Government.  The  papal  delegate  refrained  from  taking  a  similar 
step,  since  he  was  awaiting  instructions.  The  coup  d'etat  seemed  to 
have  met  with  general  acquiescence,  though  the  previous  revolutionary 
disturbances  contimuKl," 

8.  Central  America. 

^  50. 

Novem])er  8.  1855.  Mr.  Marcy.  Secretary  of  State,  referring  to  the 

government  then  lately  set  up  in  Nicaragua,  with 

Nicaragua:     Sivas-  j)q,j  Patricio  Rivas  as  president,  and  William  Walker 

as  commander-in-chief  of  the  armv.   wrote  to  Mr. 
ment. 

Wheeler,  then  United  States  minister  to  that  repub- 
lic, as  follows: 

"It  appears  that  a  band  of  foreign  adventurers  has  invaded  that 
unhappy  coimtry.  and.  after  gaining  recruits  from  among  the  resi- 
dents, has  l)y  violence  overturned  the  previously  existing  government, 
and  now  pretends  to  he  in  possession  of  the  sovereign  authority.  The 
knowledge  we  have  of  their  proceedings  does  not  authorize  the  Presi- 
dent to  recognize  it  as  the  (L-  facto  government  of  Nicaragua,  and  he 
can  not  hold,  or  permit  you  to  hold,  in  your  official  character,  any 
political  intercourse  with  the  persons  now  claiming  to  exercise  the 
sovereign  authority  of  that  state.  It  appears  to  be  no  more  than  a 
violent  usurpation  of  power,  brought  about  by  an  irregular  self- 
organized  military  force,  as  yet  unsanctioned  by  the  will  or  acquies- 
cence of  the  people  of  Nicaragua.  It  has  more  the  appearance  of  a 
successful  marauding  expedition  than  of  a  change  of  government  or 
rulers. 

"  Should  the  mass  of  the  people  of  Nicaragua  be  unwilling  or  unable 
to  repel  this  inroad  or  shake  otl'  this  usurpation,  and  ultimately  submit 
to  its  rule,  then  it  may  become  de  facto  a  government,  and  responsible 
for  the  outrages  which  have  l)een  committed  upon  the  rights  and  per- 
sons of  American  citizens.     *     *     * 

•'Th(>  President  insti'ucts  you  to  abstain  from  any  official  inter- 
course with  the  persons  now  exercising  a  temporary  control  over  some 
parts  of  Nicaragua.     In  such  a  dubious  state  of  affairs  you  can  not  be 

"For  Rel.  1900,  411'.  See  also  Prei^ideiit  McKinley'.«  annual  niefs-^age  of  Decem- 
l>er  .3,  UHX),  in  which  it  is  .'^tate<l  that  as  the  act  of  Vice-President  Marnxiuin,  "in 
a.ssuming  the  reins  of  j;uverninent  during  the  absence  uf  President  Sancleniente  from 
the  capital,"  met  with  "  no  serious  ojiposition,"  the  United  States  minister,  follow- 
ing the  precedents  in  such  ca^^es,  "  enteretl  into  relations  with  the  new  de  faclu 
Government.'' 


§  50.]  RECOGNITION    OF    NEW    GOVERNMENTS.  141 

expected  to  act  in  your  official  character  until  you  receive  instructions 
from  your  Government,  but  you  will  be  entitled  to  all  the  imnumities 
of  a  minister  if  you  do  no  act  to  forfeit  them.  You  will  remain  in  the 
countrv  and  keep  your  Government  well  advised  of  the  actual  condi- 
tion of  affairs  therein.  You  will  observe  great  circumspection  in 
vour  conduct.  You  can  not  retain  a  right  to  the  privileges  of  a  min- 
ister if  you  intermeddle  in  the  concerns  of  any  of  the  parties."  " 

Before  receiving  this  instruction  Mr.  Wheeler  had  recognized  the 
Government.* 

He  was  therefore  directed  "at  once"*  to  "cease  to  have  any  commu- 
nication with  the  assumed  rulers"  of  Nicaragua  and,  until  he  should 
receive  further  instructions,  to  observe  the  course  enjoined  on  the  8th 
of  November.'" 

December  19,  1855,  Senor  Parker  H.  French  transmitted  to  Mr. 
Marcy  a  copy  of  credentials  from  Don  Patricio  Rivas,  designated  as 
provisory  president  of  the  Republic  of  Nicaragua,  accrediting  him  as 
minister  plenipotentiar}'  to  the  United  States,  and  requested  an  inter- 
view preparatory  to  the  presentation  of  his  credentials  to  the  Presi- 
dent. Mr.  Marcy  on  the  21st  of  Decemljer  replied  that  the  President 
did  not  3'et  see  cause  to  establish  diplomatic  intercourse  with  the  per- 
sons then  claiming  to  exercise  political  power  in  Nicaragua,  and  that 
he  did  not  deem  it  proper  at  that  time  to  receive  anyone  as  a  minister 
from  that  Republic.''  -This  decision  was  repeated  February  7,  1856.*^ 
Meanwhile,  Mr.  Wheeler  was  instructed  to  obtain  ""the  most  accurate 
information  in  regard  to  the  actual  political  condition  "  of  Nicaragua, 
some  of  the  accounts  representing  "that  the  present  political  organi- 
zation is  satisfactory  to  the  people,"  while  others  indicated  "  that  it 
has  no  foundation  in  the  hearts  of  the  people,  who  would  very  gener- 
ally shake  off  the  power  of  Walker  if  it  were  possible  for  them  to  do 
so,  and  that  terror  is  its  sole  foundation."'^'  Mr.  Wheeler's  reports 
were  highly  favorable  to  the  (Tovernment.'/  May  14,  1856,  a  new 
minister,  the  reverend  licentiate  Don  Augustin  Vigil,  presented  cre- 
dentials from  President  Rivas  as  envoy  from  the  Republic  of  Nicara- 
gua to  the  United  States.''     He  was  duly  received   in  that  character. 


«H.  Ex.  Doc.  103,  M  Cong.  1  .«ess.  3.o. 

f>  Ibid.  89. 

cMr.  Marcy  to  :\Ir.  Wheeler,  Dec.  7,  1855,  H.  Ex.  Doc.  108,  84  Cong.  1  Hes«.  51. 

'f  Mr.  Gushing,  Attorney-General,  to  Mr.  McKeon,U.  S.  Dist.  .\ttorney,  Dec.  24,  18.55, 
H.  Ex.  Doc.  108,  84  Cong.  1  sess.  14;  Mr.  Marcy  to  Mr.  French,  Dec.  21,  1855,  id.  57. 

f  Mr.  Marcy  to  Mr.  French,  Feb.  7,  185(5,  H.  Ex.  Doc.  108,  84  Cong.  1  seas.  7(5. 

/Mr.  Marcy,  Sec.  of  State,  to  Mr.  Wheeler,  Jan.  S,  185(5,  H.  Ex.  Doc.  108,  34  Cong. 
1  sess.  68. 

f/Mr.  Wheeler  to  Mr.  Marcy,  Feb.  26,  1856,  H.  Ex.  Doc.  103,  84  Cong.  1  sess.  7(5-77; 
same  to  same,  March  17,  18.56,  id.  121;  March  81  and  April  17,  1856,  iil.  125. 

/'  H.  Ex.  Doc.  103,  84  Cong.  1  sess.  149. 


142  states:  recognition  and  continiity.  [jJ  50. 

With  n>tVri'iuo  to  this  tninsm-tioii  President  Pierce,  in  a  .special  nies- 
sa^r*'  to  Contrress  of  May  15.  1S5»>.  made  the  followinor  statement: 

••It  is  the  established  policy  of  the  United  States  to  recognize  all 
governments  without  (piestion  of  their  source,  or  organization,  or  of 
the  means  by  which  the  governing  pei-sons  attain  their  power,  pi'ovided 
there  be  a  govtn'nment  'A  /J/r/^  accepted  ])y  the  people  of  the  country, 
and  with  reserve  only  of  time  as  to  the  recognition  of  revolutionary 
governments  arising  out  of  the  subdivision  of  parent  states  with  which 
we  are  in  relations  of  amity.  We  do  not  go  behind  the  fact  of  a 
foreign  government's  exercising  actual  power  to  investigate  questions 
of  legitimacy;  we  do  not  inquire  into  the  causes  which  led  to  a  change 
of  governnuMit.  To  us  it  is  inditi'erent  whether  a  successful  revolution 
has  ])een  aided  by  foreign  intervention  or  not;  whether  insurrection 
has  overthrown  existing  governments  and  another  has  been  established 
in  its  place,  according  to  pre«>xisting  forms,  or  in  a  manner  adopted 
for  the  occasion  by  those  whom  we  may  find  in  the  actual  possession 
of  ix)wer.  All  these  matters  we  leave  to  the  people  and  puldic  authori- 
ties of  the  particular  country  to  determine;  and  their  determination, 
whether  it  l)e  by  positive  action  or  l»y  ascertained  acquiescence,  is  to 
us  a  sufficient  warranty  of  the  legitimacy  of  the  new  government. 

■'During  the  sixty-seven  years  \^hich  have  elapsed  since  the  estab- 
lishment of  the  existing  government  of  the  United  States,  in  all  which 
time  this  Union  has  maintained  undistur))ed  domestic  tranquillity,  we 
have  had  occasion  to  recognize  governments  de  facto,  founded  either 
by  domestic  revolution  or  by  military  invasion  from  abroad,  in  many 
of  the  governments  of  Europe. 

•"It  is  the  more  imperati\ely  necessary  to  apply  this  rule  to  the 
Spanish-American  republics,  in  consideration  of  the  frequent  and  not 
seldoiu  anomalous   changes  of    organization  or  administration  which 

they  undergo,  and  the   revolutionary  nature  of  most  of  the  changes. 

*     *     * 

■•When,  therefore,  some  time  since,  a  new  minister  from  th(^  Repub- 
lic of  Nicaragua  presented  himself,  bearing  the  commission  of  Presi- 
dent Kivas.  he  nuist  and  would  have  been  received  as  such,  unless  he 
was  found  on  incpiirv  subject  to  personal  exception,  but  for  the  absence 
of  satisfactoi'y  information  upon  the  question  whether  President  Rivas 
was  in  flirt  the  head  of  an  established  government  of  the  Republic  of 
Nicaragua.  doul)t  as  to  which  ai'ose  not  only  from  the  circumstance  of 
his  avowed  association  with  armed  emigrants  recently  from  the  United 
States,  but  that  the  proposed  minister  himself  was  of  that  class  of 
persons,  and  not  otherwise  or  previously  a  citizen  of  Nicaragua. 

■•Another  minister  from  the  Republic  of  Niciiragua  has  now  pre- 
sented himself,  and  ha;^  been  received  as  such,  satisfactorv  evidence 


^  50.]  RECOGNITION    OF    NEW    GOVERNMENTS.  143 

appearing  that  he  represents  the  Governniont  iJr  facto ^  and.  so  far  as 
such  exists,  the  Government  dejur*.  of  that  Kepii})lic. 

"That  reception,  while  in  accordance  with  the  esta})lished  policy  of 
the  United  States.  Avas  likewise  called  for  bv  the  most  impt^-ativc 
special  exigencies,  which  require  that  this  Government  sliall  enter  at 
once  into  diplomatii-  relations  with  that  of  Nicaragua.  In  the  first 
})lace.  a  ditference  has  occurred  ])etween  the  (Tovernment  of  President 
Rivas  and  the  Nicaragua  Transit  Com})any.  which  in\ olves  the  neces- 
sity of  inquiry  into  rights  of  citizens  of  the  United  States,  who  allege 
that  they  have  been  aggrieved  by  the  acts  of  the  former,  and  claim 
protection  and  redress  at  the  hands  of  their  Government.  In  the  second 
place,  the  interoceanic  conununication  by  the  way  of  Nicaragua  is 
effectually  interrupted,  and  the  persons  and  property  of  unoffending 
private  citizens  of  the  United  States  m  that  country  reipiire  the  atten- 
tion of  their  (xoverimient.  Neither  of  these  objects  can  receive  due 
consideration  without  resumption  of  diplomatic  intercourse  with  the 
Government  of  Nicaragua."" 

The  recognition  of  the  Kivas-Walker  government  was  a  few  months 
later  withdrawn.  On  July  24.  ls,5»).  President  Kivas  acci'cdited  a  new 
minister  to  the  United  States.  "When  the  preliminary  copy  of  his  cre- 
dentials was  presented.  ]\Ir.  ^Nlarcy.  in  the  name  of  the  President, 
replied  that  the  troulded  state  of  affairs  in  Nicaragua  rendered  it 
uncertain  who  possessed  the  civil  authority  of  the  state,  if,  indeed, 
there  Avas  any  established  authority  entitled  "to  ])e  considered  as  a 
real  or  <Jr  facto  government."  "It  is  not.  I  presume."  said  Mr. 
Marcy.  "unknown  to  you  that  the  right  of  Don  Patricio  Rivas  to 
exercise  the  functions  of  President  of  Nicaragua  is  seriously  contested. 
The  reception  of  a  diplomatic  agent  l)y  the  President  from  either  of 
the  contestants  for  the  chief  magistracy  Avould  necessarily  involve  a 
decision  in  regard  to  that  controversy  by  the  Executive  of  the  United 
States,  which,  in  conse(|uence  of  the  imperfect  and  conflicting  state- 
ments of  the  political  condition  of  that  country,  he  is  not  now  pre- 


"11.  Ex.  Doc.  108,  34  Cong.,  1  ne^.s.,  5-(5.  In  answer  to  a  coini)laint  made  by  Mr. 
Osnia,  the  ^linister  from  Peru,  of  President  Pierce's  recognition  of  the  Kivas- Walker 
(Government  in  Nicaragua,  Mr.  ^larcy  said:  "The  United  States  regretted  as  much 
as  Peru  could  <lo  the  unhappy  political  dissensions  winch  jirevailed  for  a  long  time 
in  that  State,  and  the  disa.'^trous  conse<iuences  which  have  resulte<l  from  them.  One 
political  party,  for  the  jnirpose  of  obtaining  art  vantage  over  another,  sought  foreign 
aid,  and  invited  Walker,  with  his  a.«sociates,  to  join  its  ranks.  The  invitation  was 
accej)te<l.  So  long  as  there  was  a  contest  for  jtowei",  so  long  as  any  (|uestion  could 
be  raised  as  to  the  persons  in  whose  hands  the  (Jovernment.  actual  or  df  facto,  had 
fallen,  this  (Jovenmient  did  nothing  whi<'h  could  afford  any  i>retense  for  complaint 
to  any  i>arty  in  the  State  of  Nicaragua,  or  to  any  foreign  pijwer."  (Mr.  Marcy.  Sec. 
of  State,  to  Mr.  Osma,  Sejjt.  24,  lS.^t),  MS.  Notes  t(.  Peruvian  Leg.  I.  14S.;i 

That  the  United  States  recogni/e  fon-igii  govermnents  as  existing  <h' j<t<-tn.  without 
regard  to  their  forms,  see  opuiion  of  Mr.  Cushing,  Attorney-General,  1855,  7  Op.  582. 


144  states:  recognition  and  continuity.  [§  50. 

pared  to  make.  I  am.  therefore,  directed  to  acquaint  you  that  he 
declines  to  receive  you  a.s  minister  from  Nicara^^ua."" 

••Your  dispatches  of  the  10th  of  November,  Nos.  5  and  6,  have  been 
received.  In  your  No.  5  you  announce  that  a  revolu- 
tion has  taken  phice  in  Costa  Rica,  which  was  effected 
by  the  mere  display  of  military  force,  unresisted,  and  without  the 
effusion  of  blood.  You  further  announce  that  in  that  movement  the 
President,  Senor  Castro,  was  deposed,  and  the  first  provisional  substi- 
tute, Senor  Jimenez,  had  assumed  the  executive  power.  The  further 
transactions  mentioned  are  an  acquiescence  of  the  several  provinces, 
the  suspension  of  the  constitution,  and  the  call  of  a  national  convention 
to  adopt  a  new  constitution.  As  a  consequence  of  these  events,  you  have 
recotrnized  the  new  President,  subject  to  directions  on  the  occasion 
from  the  President  of  the  United  States. 

••It  does  not  belong  to  the  Government  or  people  of  the  United 
States  to  examine  the  causes  which  have  led  to  this  revolution,  or  to 
pronounce  upon  the  exigency  which  they  created.  Nevertheless,  great 
as  that  exigency  may  have  been,  the  subversion  of  a  free  republican 
constitution,  only  nine  years  old.  by  military  force,  in  a  sister  Amer- 
ican Repul)lic.  cannot  l)ut  be  an  occasion  of  regret  and  apprehension 
to  the  friends  of  the  system  of  republican  government,  not  only  here, 
but  throughout  the  world. 

"It  only  remains  to  say  that  the  course  which  you  have  pursued  is 
approved,  insomuch  as  it  appears  that  there  is  not  only  no  civil  war, 
but  no  Government  contending  with  the  one  which  has  been  established." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Blair,  Dec.  1,  1868,  Dip.  Cor.  1868,  II.  .337. 


"Mr.  Marcy,  Sec.  of  State,  to  Senor  Don  Antonio  Jose  de  Irii^arri,  Oct.  28,  1856, 
MS.  Note.s  to  Cent.  Am.  I.  119. 

Oct.  IS,  1886,  Mr.  Ca^tellon,  iiiini.«ter  of  foreijjn  relations  of  Nicarajrua,  addressed 
to  Mr.  Hall,  the  minister  of  the  T'nited  States,  the  following  nf)te:  "I  have  the 
honor  to  inform  you  that  having;  transcril)e<l  to  the  minister  of  the  trea.<ury  your 
esteemed  note  of  the  22d  Sei)teml)er,  together  with  a  copy  oi  the  bond  acconi])anying 
it,  I  have  received  the  reply  of  which  the  following  is  a  cf>py: 

'"I  have  had  the  honor  to  receive  the  communication  that  you  were  pleased  to 
address  me  on  the  8th  inst.,  in  which  is  transmitted  the  note  of  the  minister  of  the 
Unite<l  States,  dated  the  22d  of  SeptemV)er,  inquiring  as  to  the  authenticity  and 
validity  «{  the  supjM>sed  bond  of  this  Repul)lic  issued,  as  it  is  pretende<i,  in  con- 
formity with  a  flecree  <<i  the  (iovernment  of  Niearagua  of  the  28th  of  August,  1856. 
A  textual  coi)y  of  the  bond  accompanies  the  above-mentioned  note. 

•'  'The  mentioned  decree  is  not  known  to  the  (iovernment,  nor  does  it  exist  on  the 
records  of  our  loans,  nor  is  the  obligation  to  which  it  refers  a  legitimate  debt  of  the 
Republic.  By  the  dates  that  are  cite<l  I  i»erceive  that  it  nuist  l>e  the  work  of  the  fili- 
busters of  Walker,  who  were  here  al)out  that  time,  and  whose  history  of  depredation 
and  rapine  is  well  known.  Of  counse  the  foreign  usurjK^rs  never  had  any  right  to 
(Omitromise  the  credit  of  this  Republic.'"  (For.  Rel.  1887,  76.  This  reply  was 
referreil  to  by  Mr.  Day,  Assist.  Sec.  of  State,  in  a  letter  to  Mr.  Taliaferro,  Oct.  9, 
1897,  221  MS.  Dom.  U't.  409.) 


3  -^0.]  RECOGNITION    OF    NEW    GOVERNMENTS.  145 

•'The  peace  of  Central  America  has  again  been  disturbed  through  a 
revokitionary  change  in  Salvador,  which  was  not  recog- 
'  ■  nized  by  other  states,  and  hostilities  broke  out  between 
Salvador  and  Guatemala,  threatening  to  involve  all  Central  America 
in  conflict  and  to  undo  the  progress  which  had  been  made  toward  a 
union  of  their  interests.  The  efforts  of  this  Government  were  promptly 
and  zealouslv  exerted  to  compose  their  differences,  and  through  the 
active  efforts  of  the  representative  of  the  United  States  a  provisional 
treaty  of  peace  was  signed  August  26,  whereby  the  right  of  the  Repub- 
lic of  Salvador  to  choose  its  own  rulers  was  recognized.  General  Ezeta, 
the  chief  of  the  provisional  government,  has  since  been  confirmed  in 
the  Presidency'  by  the  assembly,  and  diplomatic  recognition  duly 
followed." 

President  Harrison,  Aiuiual  ^lessage,  Dec.  1,  1890. 

July  17,  1893,  the  minister  of  the  United  States  in  Nicaragua  was 
instructed  "'to  report  without  delay  when  the  control  of  the  executive 
power  of  Nicaragua  shall  pass  with  general  acquiescence  to  any  gov- 
ernment, and  to  maintain  an  attitude  of  impartiality  during  the  deeph' 
deplored  continuance  of  civil  dissensions  in  that  country.'" -' 

By  a  treaty  concluded  at  Amapala,  Honduras,  June  20,  1895,  and 

of  which  the  ratifications  were  exchanged  on  the  loth 

«**^^i  A^^  •^*'°   of  September,  1896,  the  Republics  of  Honduras,  Nica- 

Central  America.  ^  i-.ii  ^  .  •  .  .     , 

ragua.  and  Salvador  agi'eed  to  form  a  single  political 

organization  for  the  exercise  of  their  external  sovereignty,  with  the 
title  of  the  Greater  Republic  of  Central  America.  The  President  of 
the  United  States  recognized  this  organization  by  receiving  a  minister 
from  it  on  December  24,  1896,  such  recognition  being  given  "upon 
the  distinct  understanding  that  the  responsibility  of  each  of  these 
Republics  toward  the  United  States  remains  wholy  unaffected."'*  The 
United  States,  however,  remained  without  a  representative  to  the 
Greater  Republic  of  Central  America,  appropriations  continuing  to 
be  made  for  a  minister  to  Nicaragua,  Costa  Rica,  and  Salvador,  and 
a  minister  to  Guatemala  and  Hondviras,'"  and  the  two  ministers  con- 
tinuing to  be  so  accredited.  Owing  to  the  compact  of  June  20,  1895, 
whereb}'  the  memljers  of  the  Greater  Republic  of  Central  America  had 
surrendered  to  the  representative  Diet  the  right  to  send  and  receive 
diplomatic  agents,  the  minister  to  Nicaragua,  Costa  Rica,  and  Salvador 
was  received  onh'  by  Costa  Rica;  and  the  minister  to  Guatemala  and 
Honduras  only  by  Guatemala.''  Subsequently  a  permanent  constitu- 
tion was  formed  under  the  name  of  "The  United  States  of  Central 

a  Mr.  Gresham,  Secretary  of  State,  to  Mr.  Baker,  minister  to  Nicaragua,  tel.,  July 
17,  1893,  For.  Rel.  1893,  203;  same  to  same,  Aug.  15,  1893,  M.  212. 

bFor.  Rel.  1896,  36(>-371,  390-392,  395. 

'•29  Stat.  579;  30  Stat.  262.  See,  also.  Annual  Message  of  the  I'resident,  Dec.  6, 
1897. 

''President's  Annual  Message,  Dec.  5,  1898,  \>.  22. 

H.  Doc.  551—10 


146  STATKS:    RECOGNITION    AND    CONTINUITY.  [§  «^1  • 

America."  It  was  signed  by  representatives  of  the  three  States,  al 
Managua.  August  '27,  1898,  and  was  to  take  effect  November  1.  On 
that  day.  pursuant  to  its  provisions,  a  provisional  executive  council 
was  installed  at  Amapala.  to  last  till  a  president  should  be  elected  by 
the  people.  Almost  innncdiately,  however,  revolutionar}-  movements 
occurred,  and  particularly  a  separatist  movement  in  Salvador.  Novem- 
ber 29,  1898,  the  provisional  executive  council  announced  the  dissolu- 
tion of  the  luiion,  and  similar  announcements  by  the  individual  States 
immediately  followed,  each  one  resuming  its  independent  sovereignty." 
"This  was  followed  by  the  reception  of  Minister  Merry  by  the 
repu))lics  of  Nicaragua  and  Salvador,  while  Minister  Hunter  in  turn 
presented  his  credentials  to  the  (Tovernmcnt  of  Honduras,  thus  revert- 
ing to  the  old  distribution  of  the  diplomatic  agencies  of  the  Tnited 
States  in  Central  America  for  which  our  existing  statutes  provide.  A 
Nicaraguan  envoy  has  been  accredited  to  the  United  States."^ 

9.  ^Iexk'o. 
>j  51. 

President  Pierce,  in  a  special   message  of  ]May  15,  1856,  o])served 

^      „,  that  "live  successive  revolutionarv  governments"  had 

Comonfort.Zuloaga,  .  .  .      '      . 

and  Miramon  made  thcii"  appearance  in  ^Mexico  •'in  the  course  of  a 
Governments.  ^^,y^.  months,  and  been  recognized  successively  each  as 
the  i)oliticaI  power  of  that  country  ])v  the  I'nited  States.'"'  On  the 
very  day  on  which  this  message  was  published.  Ignatius  Comonfort, 
as  vice-president  of  the  Republic,  in  the  exercise  of  extraordinary 
powei's.  proclaimed  a  provisional  constitution.  In  the  following  year 
the  present  federal  constitution  of  Mexico  was  adopted.  Comonfort 
took  an  oath  to  support  it,  and  was  elected  constitutional  president 
for  the  four  years  l)egiiuiing  l)eceml)er  1,  1857.  Within  a  month,  as 
the  result  of  a  revolution,  he  was  driviMi  from  power,  and  a  military 
government  was  set  u])  by  (leneral  Zuloaga.  This  government  was 
recognized  by  the  entire  diplomatic  corps,  including  Mr.  Forsyth,  the 
minister  of  the  Ignited  States,  without  awaiting  instructions.  No 
answer  ai)pears  to  have  been  made  to  the  dispatch  in  which  ]Mr.  For- 
syth reported  this  action.''     Zuloaga.   h()we\-er.   was  soon  expelled  ])y 


"For.  Rol.  1W>S,  17.S-17H. 

'>  President  McKinlcy,  Animal  Mcssa^rc,  IK'C.  5,  1S<I<».  Doc.  6,  1S*»S,  Mr.  Ilay,  Sec- 
retary (if  State,  telejrraphed  to  Mr.  Hunter  tliat,  a.s  the  union  of  the  Tnited  States  of 
Central  America  had  aii]>arcntly  liroken  up  without  restoration  of  the  Diet,  he  .should 
address  the  executive  of  Honduras,  offering  to  jiresent  his  <iriirinal  credential.*.  (For. 
Rel.,  189'),  8.>i.)  Dec.  L'O,  LS9S,  Mr.  Hunter,  in  order  to  make  sure  that  hi.«  creden- 
tials would  he  received,  transmitted  l)y  mail  to  the  minister  of  foreign  affairs  of 
Honduras  liis  original  cre<lentials  and  letter  to  I'resident  Bonilla.  (For.  Rel.,  1898, 
3.56.)  He  was  duly  advise<l  f)f  his  recognition  as  envoy  extraordinary  and  minister 
plenipotentiary  to  the  Republic  of  Honduras.  The  ilecree  so  recognizing  him  was 
date<l  .January  19,  1899.      (For.  Rel.  1899,  :i=>7-a»)0.  ) 

'H.  Kx.  Doc.  lO.S,  84  Cong.  1  se.s>^.  n. 

^Oloore,  Int.  Arbitrations,  II.  11^89. 


§  51.]  RECOGNITION    OF    NEW    GOVERNMENTS.  147 

General  Miranion,  with  whom  the  foreign  ministers  also  entered  into 

relations.     But  in  June,  1858,  Mr,  Forsyth,  dissatisfied  with  the  state 

of  his  negotiations,  broke  oflf  diplomatic  relations  with  the  Miramon 

government  till  he  should  ascertain  the  decision  of  the  President. 

President  Buchanan  approved  his  decision,  and  directed  him  to  demand 

his  passports  and  return  to  the  United  States. 

Meanwhile,  Benito  Juarez,  who   as  chief  justice  of  the  Republic 

became  the  constitutional   president   on   the   deposi- 

Juarez  Government.   ,.  s-   r^  j!xij.i_  ij  i^^it-i         i 

tion  of  Comonrort,  but  who  as  leader  or  the  Liberal 

part}'  was  compelled  to  flv  from  the  capital,  had  after  many  vicissi- 
tudes succeeded  in  establishing  a  government  at  Vera  Cruz.  On  the 
strength  of  a  report  of  a  confidential  agent,  President  Buchanan  sent 
out  a  new  minister,  Mr.  McLane,  with  discretionary^  authority  to 
recognize  the  government  of  President  Juarez  if,  on  his  arrival  in 
Mexico,  he  should  find  it  entitled  to  recognition  according  to  the  estab- 
lished practice  of  the  United  States.  Mr.  ]McLane  was  specifically 
instructed  that  it  was  not  an  essential  condition  of  the  recognition  of 
a  government  that  it  should  be  in  possession  of  the  capital,  but  that  it 
was  enough  if  it  was  "obej-ed  over  a  large  majority  of  the  countr}'^ 
and  the  people,  and  is  likely  to  continue."''  Mr.  McLane,  on  April  7, 
1859,  presented  his  credentials  to  President  Juarez,  and  thus  recognized 
his  government,  which  he  pronounced  to  be  '"the  only  existing  gov- 
ernment of  the  Republic.'"'^ 

The  government  of  Maximilian  in  Mexico  never  was  recognized 
by  the  United  States,  the  recognition  of  the  Juarez 
mpire.      government  continuing  throughout  the  period  of  the 
French  intervention.^ 

The  Mexican  law  for  the  settlement  of  the  national  debt,  proclaimed  June  18, 
1883,  Art.  I,  sec.  5,  reads:  "We  can  not  recognize,  and  for  this  reason 
there  are  not  to  enter  into  this  conversion,  the  debts  which  emanated 
from  the  government  which  pretended  to  exist  in  Mexico  from  Dec.  17, 
1857,  to  Dec.  24,  I860,  and  from  June  1,  186.3,  to  June  21,  1867."  (Mr. 
Adee,  Second  Assist.  Sec.  of  State,  to  Mr.  Banks,  Dec.  10,  1897,  MSS. 
Dept.  of  State.) 

n  Mr.  Ca,«s,  Secretary  of  State,  to  Mr.  McLane,  Mar.  7,  1859,  MS.  Inst.  ^lexico, 
XVII.  213;  also,  same  to  same.  May  25,  1859,  id.  232. 

'^Curtis,  Life  of  Buchanan,  II.  215. 

See,  also,  Mr.  Cass,  Secretary  of  State,  to  :Mr.  Dallas,  :May  12,  1859,  :MS.  Inst.  Gr. 
Britain,  XVII.  190,  referring  to  the  recognition  of  the  Juarez  government  by  the 
United  States,  and  deprecating  the  employment  against  it  of  forcible  measures,  which 
Great  Britain  was  reported  then  to  contemplate  for  the  collection  of  claims  against 
Mexico,  although  the  British  nunister  still  maintained  relations  with  the  Miramon 
government  at  the  capital. 

<-■  Mr.  Seward,  Sec.  of  State,  May  16,  1864,  MS.  Inst.  Papal  States,  I.  J5;  Mr.  Seward, 
Sec.  of  State,  to  [Mr.  Bigelow,  March  13,  1865,  :MS.  Inst.  France,  XVII.  296;  Mr. 
Seward,  Sec.  of  State,  to  the  Marquis  de  Montholon,  MeuKjrandum,  July  18,  186.5, 
MS.  Notes  to  French  Leg.  VIII.  140;  Mr.  Seward,  Sec.  <jf  State,  to  IMr.  Scudder,  May 
4,  1866,  73  MS.  Dom.  Let.  32;  Correspondence  and  Memoranda,  Dip.  Cor.  1865,  III. 
484-489. 


148  states:  recognition  and  continuity.  [§  51. 

Noveinbor  2S,  18T<i,  General  Portirio  Diaz  issued  a  proclamation 
announcing  himself  provisional  president  of  the  repub- 
laz  overn-  j.^  ^^  MexIco,  under  the  plan  of  Tuxtepec.**  January 
19,  18Y7,  intelligence  having  been  received  at  Wash- 
ington of  the  defeat  of  the  forces  of  the  rival  claimants,  Mr.  Fish  sug- 
gested that  if  this  should  be  confirmed  b}-  similar  tidings  received  at 
the  City  of  Mexico,  General  Diaz  "'would  have  no  important  adver- 
sary in  arms,  and  might  ])e  regarded  as  the  actual  ruler  of  the  country." 
The  question  of  recognizing  his  government  was  under  the  circum- 
stances left  to  the  discretion  of  the  American  minister.''  In  view, 
howevei".  of  the  unsettled  state  of  affairs  in  Mexico,  and  especially  of 
the  existence  of  controversies  between  the  two  countries  growing  out 
of  troubles  on  the  Rio  Grande  frontier,  it  was  afterwards  determined 
that  the  government  of  the  United  States,  although  it  was  "accustomed 
to  accept  and  recognize  the  results  of  a  popular  choice  in  Mexico  and 
not  to  scrutinize  closely  the  regularity  or  irregularity  of  the  methods" 
))y  which  those  results  were  brought  about,  woidd  in  the  particular 
instance  "wait  before  recognizing  General  Diaz  as  President  of  Mexico 
until  it  shall  be  assured  that  his  election  is  approved  by  the  Mexican 
people,  and  that  his  administration  is  possessed  of  staV)ility  to  endure 
and  of  disposition  to  comply  with  the  rules  of  international  comity 
and  the  obligations  of  treaties."''  The  Diaz  government  was  officially 
recognized  by  Germany.  May  8(»,  iSTT;  by  Salvador  and  Guatemala, 
June  T:  by  Spain.  June  !♦).  and  soon  afterwards  similar  action  was 
taken  ))y  Italy.''  These  were  all  the  powers  then  represented  in  Mex- 
ico, except  the  United  States.  In  his  annual  message  of  December  3, 
1877.  President  Hayes  stated  that  it  had  been  "'the  custom  of  the  United 
States,  when  such  [revolutionar}']  changes  of  government  have  hereto- 
fore occurred  in  Mexico,  to  recognize  and  enter  into  official  relations 
with  the  y/r  facto  government  as  soon  as  it  should  appear  to  have  the 
approval  of  the  ^Mexican  people  and  should  manifest  a  disposition  to 
adhere  to  the  obligations  of  treaties  and  international  friendship,"  but 
that  "in  the  present  case  such  oflicial  recognition  has  been  deferred 
by  the  oeeurrenees  on  the  Rio  Grande  border,"''  Ofiicial  recognition 
was  given  early  in  May,  1878,  when  a  formal  reception  was  accorded 
to  a  new  minister  from  ^Mexico,  and  the  President  formally  replied 
to  the  letter  of  General  Diaz  announcing  the  recall  of  the  previous 
represcMitative.' 

"Mr.  Foster,  Tiiinistcr  to  Mexico,  to  Mr.  Fish,  Sec.  of  State,  Nov.  29,  1876,  For. 
Rel.  1S77,  :}S.5. 

''For.  Kel.  1S77,  .S94. 

'•:Mr.  F.  W.  Seward,  acting  Sec.  of  State,  to  ]Mr.  Foster,  May  16,  1877,  For.  Rel. 
1877,404.  See,  also,  Mr.  Fish,  Sec.  of  State,  to  Mr.  Foster,  Feb.  12,  1877,  MS.  Inst. 
Mexico,  XIX.  .'«1;  Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  March  27,  1877,  id.  327. 

'/For.  Rel.  1877,  4W,  426. 

•^  Id.  }).  xii. 

.'"For.  Rel.  1878,  675;  Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  May  8,  1878,  MS. 
Inst.  Mexico,  XIX.  408. 


§  52.]  RECOGNITION    OF    NEW    GOVERNMENTS.  149 

10.  Venezuela. 

§52. 

The  minister  of  the  United  States  at  Caracas  in  1862  having  without 
p      -  authority  recognized  the  government  of  Cxenerjd  Paez, 

he  was  instructed  to  inform  that  government  that  his 
action  was  disavowed  and  annulled.  He  was  also  instructed  to  explain 
that  this  decision  did  not  imply  '*any  hositilitv,  or  even  any  disfavor" 
to  the  government,  much  less  an  opinion  that  it  was  ""not  founded 
in  justice  or  in  right,"  or  that  it  had  not  been  successfully  established. 
The  object  of  the  United  States  was  "  to  manifest  the  conviction"  that 
it  belonged  '*  to  the  Venezuelan  state  to  establish  and  maintain  its  own 
government  without  intervention,  intrusion,  or  even  influence,  from 
foreign  nations,  and  especially  from  the  United  States,"  and  that  as  yet 
there  had  been  seen  ''no  such  conclusive  evidence"  that  the  Paez  gov- 
ernment was  ""the  act  of  the  Venezuelan  state  as  to  justify  an 
acknowledgment  thereof."  The  United  States  observed  with  regret 
'an  unquiet  and  revolutionary  spirit  pervading  the  republican  states 
on  this  continent,  involving  them  continually  in  desolating  and  exhaust- 
ing civil  wars,  ultimately  subversive  not  only  of  national  independence, 
l)ut  even  of  libert\'  itself."  The  United  States  therefore  deemed  it  a 
duty  "to  discourage  that  spirit  so  far  as  it  can  be  done  b}"  standing 
entireh'  aloof  from  all  such  domestic  controversies  until  in  each  case  the 
state  immediately  concerned  shall  unmistakably  prove  that  the  gov- 
ernment which  claims  to  represent  it  is  f ulh'  accepted  and  peacefully 
maintained  by  the  people  thereof."" 

"The  revocation  [of  the  U.  S.  minister's  act  of  recognition]  was  the 
more  reluctantly  made  because  General  Paez,  by  his  character,  had 
already  most  favorably  impressed  the  government  and  people  of  the 
United  States,  and  so  far  as  their  wishes  and  feelings  might  be  mani- 
fested, consistently  with  the  law  of  nations,  they  actually  desired 
the  consolidation  of  the  national  authority  of  Venezuela  under  the 
auspices  of  his  government.  *  *  *  It  is  only  necessary"  now  to 
add,  or  rather  to  state  more  distinctly,  what  has  been  before  intimated, 
that,  for  a  considerable  period,  considerations  quite  foreign  from  the 
domestic  condition  of  Venezuela  have  hitherto  forbidden  the  United 
States  from  recognizing  new  authorities  arising  in  the  Spanish-Ameri- 
can states  through  domestic  revolution,  and  that  the  delay  in  regard 
to  Venezuela  is  to  be  understood  as  implying  no  hostility,  disfavor,  or 
distrust  in  regard  to  the  government  of  General  Paez." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Culver,  March  9,  18(W,  ]MS.  Inst.  Venezuela, 
I.  266. 

The  remains  of  General  Paez,  who  after  his  downfall  came  to  the  United 
States,  where  he  died  and  was  buried,  were  sent  by  the  government  in 
1888  on  a  public  vessel  to  Caracas,  where  they  were  received  l)y  the  Vene- 
zuelan Government.     (For.  Rel.  1888,  II.  1643-1645.) 

«  Mr.  Seward,  Sec.  of  State,  to  Mr.  Culver,  Nov.  19,  1862,  MS.  In.st.  Venezuela,  I. 
250.     See,  a,s  to  the  Paez  goveriunent,  Moore,  Int.  Arl)itrations,  IV.  3558. 


150  states:  recognition  and  continuity.  [§52. 

Tlic  Mox  ci-mnont  of  President  Falcon  was  recognized  late   in  the 
siinuner  of  18H4,  after  a  pro})ation  of  nearly  a  year." 

Falcon  Government.    .  ,.,  ,,  ,,  i.-    1.1        t-"   i  '  i.    • 

Alter   the  oyerthrow  01    the    ralcon    j>()yernnient  m 

ISOS,''  another  period  of  \vaitin«»*  \vas  entered  upon  till  one  of  the  riyal 

claimants  should  proye  his  title  to  recognition.''     (xuzinan  Blanco  was 

ultimately  successful. 

On   his  restoration   to   power   1)V  the   reyolution  of   i>S7i<,  General 

(iuzman   Blanco  conyoked  a  "congress  of  plenipoten- 
Revolution  of  1879;  ,.      .       ..  ...  ,.  i.   i.-  i?  i.u  1 

tiaries.    consisting  01  representatiyes  from  the  seyeral 
Guzman  Blanco.        ,  ^  1  •   1      . 

States  of  Venezuela,  which  formed  a  proyisional  goy- 

ernment  and  elected  him  proyisional  president.  He  was  soon  recog- 
nized by  the  diplomatic  representatiyes  of  Brazil.  England.  France, 
Germany,  Italy,  and  Spaiiv.''  The  United  States,  howeyer,  deferred 
its  recognition.  Mr.  Eyarts.  who  was  then  Secretar}'  of  State,  taking 
a  position  similar  to  that  which  he  had  preyiously  assumed  with  refer- 
ence to  the  new  goyernment  of  Mexico.  The  new  administration  of 
Venezuela,  he  o))seryed,  was  "not  understood  to  haye  gained  power 
by  any  constitutional  process  of  election  or  endorsement,"  and,  while 
•"its  claims  to  <Jr  facto  recognition"  were  "weighty,"'  it  was  "thought 
best  to  defer  formal  intercourse"  till  assurance  could  be  had  that 
"such  a  step  will  not  only  rest  on  the  popular  will  of  Venezuela,  but 
will  also  be  beneticial  to  the  relations  between  the  Ignited  States 
and  that  country.  Good  faith  in  the  obseryance  of  international  obli- 
gations is  the  first  essential  towards  the  maintenance  of  such  relations. 
At  present  there  is  no  indication  that  any  change  for  the  better  has 
taken  place,  either  as  regards  the  pa^iuent  of  the  indemnity  install- 
ments, now  for  smeral  months  in  default,  or  the  securit}-  of  the  rights 
of  citizens  of  the  United  States  sojourning  in  Venezuela."  The 
American  minister  was  therefore  to  ''maintain  a  considerate  and  con- 
ciliatory attitude"  in  his  "unofficial  relations  with  the  new  goyern- 
ment." with  a  yiew  "to  bring  about  with  all  conyenient  speed  a  proper 
understanding  upon  the  pending  issues  as  the  necessary  preface  to 
formal  recognition:"'  and  he  was  to  "cooperate  in  all  proper  ways 
(short  of  formal  recognition  until  .so  instructed)  in  the  good  work  of 
pi-eserying  intact  the  friendly  relations  between  the  two  countries."-^" 


"Mr.  .'^ewanl,  Sec.  of  State,  to  Mr.  Culver,  Aug.  24,  1864,  MS.  Inst.  Venezuela,  I. 
;^0y;  «ime  to  .«ame,  Oct.  21,  18(j:i  id.  288. 

''Mi.ore,  Int.  Arhitrati«>ns,  11.  KW:^  ct  se<j. 

'•.Mr.  Sfwanl,  St-c.  of  State,  to  Mr.  linizual,  Aug.  27,  1868,  MS.  Note?  to  Venezuelan 
Ix'g.,  1.  1.S6. 

'/For.  Kel.  lS7!t,  \,\<.  1041,  1()4;5. 

>■  Mr.  Kvart.-,  .^ee.  of  State,  to  Mr.  Baker,  April  8,  1879,  MS.  Inst.  Venezuela,  III.  61. 

.'■  Mr.  Evart.-^,  Sec.  of  State,  t(.  Mr.  Raker,  April  10,  1879,  MS.  Inst.  Venezuela,  III.  6.3. 

■■  As  a  general  rule  of  foreign  poliey,  obtaining  sinee  the  foundation  of  our  govern- 
ment, the  recognition  of  a  f(jreign  g<)v«'riniient  by  this  is  not  dependent  on  right,  but 
nn  fact.      For  this  ri'a.-^<tn,  when  a  change  occurs  in  the  ailniinistration  of  a  nation, 


J?  52.]  RECOGNITION    OF    NEW    GOVERNMENTS.  151 

''It  is  understood  that  th(^  prococdinos  of  tlic  coiioress  of  ])l(>nipo- 
tentiavies.  hy  wliich  (Jon.  (xuzinan  Bhinco  lu'caiuc  pi-ovisional  presi- 
dent for  a  term  of  years,  invested  liini  with  the  presidential  funetions 
de  facto,  notvvithstandin*^"  the  al)sen('e  of  any  constitutionally  elective 
choice  ))y  popular  suffrage.  This  de  facto  administration  has  entire 
control  of  the  executive  and  o-overnmenta!  machinery  of  Venezuela,  and 
rules,  not  merely  without  opposition,  l)ut  with  what  seems  to  be  the  posi- 
tive acquiescence  of  the  g-overned;  and,  und(>r  the  genei'al  usage  of 
nations,  no  legitimate  obstacle  on  that  score  exists  to  its  recognition. 

'"Ikit  the  capacity  of  a  state,  in  itself,  for  rtn-ognition,  and  the  fact 
of  recognition  l)v  other  states,  are  two  different  things.  Recognition 
is  not  an  act  wholly  depending  on  the  constitutionality  or  completeness 
of  a  change  of  government,  but  is  not  infrecfuently  influenced  l)v  the 
needs  of  the  mutual  relations  between  th(>  two  countries.  When  radi- 
cal changes  have  taken  place  in  the  domestic  organization  of  the 
country,  or  when  they  seem  to  l)e  contemplated  in  its  outward  rela- 
tions, it  is  often  a  matter  of  solicitude  w^th  this  government  that  some 
understanding  should  exist  that  the  rights  acquired  b}'  our  citizens, 
through  ihe  operation  of  treaties  and  other  diplomatic  engagements, 
shall  not  be  atlected  by  tlie  change.  In  other  words,  while  the  United 
States  regard  their  intca'national  compacts  and  obligations  as  entered 
into  with  nations  rather  than  with  political  (jorernntents.  it  behooves 
them  to  be  watchfid  lest  their  course  toward  a  government  should  affect 
the  relations  to  the  nation.  Hence  it  has  l)een  the  customary  policy  of 
the  United  States  to  be  satisfied  on  this  point;  and  doing  so  is  in  no 
wise  an  implication  of  doubt  as  to  the  legitimacy  of  the  internal  change 
which  may  occur  in  another  state. 

■"Pending  formal  recognition,  however,  it  is  not  to  be  supposed 
that  any  of  the  customary  l)usin(>ss  relations  or  civil  courtesies  are 
abruptly  terminated.  The  actual  fornnda  of  recognition  is  unmis- 
takal)le,  and.  short  of  that  evident  step,  the  diplomatic  fiction  of 
'officious'  intercourse,  or  '  unofficial'  action  is  elastic  enough  to  admit 
of  continuing  ordinary  intercourse,  for  the  most  part,  without  rupture 
of  any  of  its  varied  parts. 

'The  Department,  in  the  light  of  the  preceding  considerations,  is 
constrained  to  regard  your  action  [in  staying  away  from  a  bancfuet 
given  l)y  President  Guzman  Blanco]  as  based  on  the  mistaken  assump- 
tion that  your  position  is  one  of  non-intercourse  rather  than  of 
•officious'  or  •  unofficial'  and  friendlv  intei-course;  and  that,  in  holding 


and  the  new  authorities  are  in  unopposed  possession  of  tlie  full  machinery  of  govern- 
ment with  duly  appointed  public  othcers  acting  in  its  name,  and  evincing  the  pur- 
pose as  well  as  the  power  to  carry  out  the  international  obligations  of  the  state, 
recognition  would  follow  as  a  matter  of  course,  whatever  might  be  the  })ersonal 
cliaracter  of  the  head  of  the  new  government,  or  whatever  the  nature  of  his  rule,  so 
long  as  no  considerations  of  ])(jlicy  directly  affecting  the  relations  l)etween  his 
country  and  this  intervene  to  postpone  such  a  result."  (Mr  Hunter,  Acting  Sec, 
to  Mr.Baker,  Oct.  :?,  1879,  MS.  Inst.  Venezuela,  III.  79.  ^ 


152  states:  recognition  and  continuity.  [§  52. 

a  conference  with  the  President  of  the  Republic  and  entering,  as  you 
did.  into  the  unnecessary  expknation  of  the  secret  motives  of  your 
conduct,  you  committed  a  breach  of  diplomatic  usage.  Had  you 
desired  to  attend  the  entertainment,  an  intimation  to  the  minister  of 
foreign  affairs  that  you  attended  in  a  friendly  and  informal  capacity 
merely,  pending  the  receipt  of  instructions  to  proceed  to  formal  recog- 
nition, would  have  a])undantly  guarded  your  official  responsibility. 
Had  3'ou  had  personal  reasons  for  not  wishing  to  attend,  the  usages  of 
polite  intercourse  were  adequate  for  the  expression  of  your  regret." 

Mr.  Evarts,  Seo.  of  State,  to  Mr.  Baker,  June  14,  1879,  MS.  Inst.  Venezuela, 
III.  67. 

In  his  No.  188,  of  Dec.  25,  1879,  Mr.  Baker  reported  the  reception  of  a  note 
from  the  newly  appointed  minister  of  foreign  relations  of  Venezuela, 
reiiue.-ting  him  to  regard  as  not  received  a  note  previously  sent  ofKeially 
informing  him  of  the  minister's  appointment.     ^Ir.  Evarts  replied: 

"I  am  not  disposed  to  regard  this  note  as  ix)ssessing  of  itself  alone  the  excep- 
tional gravity  yon  attach  to  it.  It  is  not  in  any  sense  a  i)ersonal  incivility 
toward  you.  Your  relations  with  the  Venezuelan  government  being 
purely  unothcial  and  friendly  mereh'j  you  can  not  expect  that  government 
to  ])lace  you  on  the  same  official  footing  as  the  representatives,  duly 
accre<lited,  of  powers  maintaining  full  official  relations  with  the  govern- 
ment of  General  Guzman  Blanco.  That  an  official  announcement  was 
sent  to  you  in  common  with  them  may  have  been  an  oversight,  which  the 
minister  hastened  to  rectify  by  resorting  to  the  diplomatic  fiction  of 
regarding  the  communication  as  no)i  urenue,  a  frien<lly  and  pro{)er  step 
and  not  as  liable  to  be  construed  offensively  as  would  have  been  the  formal 
recall  of  the  ])aper  from  your  files. 

"The  minister's  note  is  not  understood  as  foreshadowing  the  termination  of 
the  unofficial  relations  you  have  so  long  held  with  his  government.  Only 
an  interruj>tion  of  actual  intercourse  on  the  basis  heretofore  made  clear  to 
you  by  the  instrui-tions  of  this  Department  would  present  a  question  of 
recalling  the  representative  of  the  United  States  from  Venezuela."  (Mr. 
Evarts,  Sec.  of  State,  to  Mr.  Baker,  Jan.  22,  1880,  MS.  Inst.  Venezuela, 
III.  87.) 

In  the  spring  of  1880.  the  Venezuelan  Congress  having  met  and 
elected  General  Guzman  Blanco  President,  it  was  decided,  notwith- 
standing that  the  questions  relating  to  the  indemnitv  and  to  claims 
had  not  been  settled,  to  give  him  formal  recognition.  "By  this  pro- 
ceeding [the  election  of  Gen.  Guzman  Blanco  as  President  by  the 
Venezuelan  Congress]  the  .sanction  of  the  people  ot  Venezuela  is,"' 
said  Mr.  Evarts,  "deemed  to  have  been  as  freely  and  completely  given 
to  the  administration  of  President  Guzman  Blanco  as  can  be  reason- 
ably expected  in  countries  so  subject  to  sudden  and  violent  political 
change  as  are  those  of  Spanish  America,  and  no  good  cause  could 
longer  be  perceived  for  withholding  the  due  recognition  of  the  gov- 
ernment so  .-sanctioned  and  inaugurated.''" 

"  Mr.  I^varts,  Sec.  oi  State,  to  Mr.  Baker,  Ajjril  27,  1880,  MS.  Inst.  Venezuela, 
III.  99.  Mr.  Gomacho  was  officially  recognized  as  charge  d'affaires  on  April  20, 
1880.  liy  a  note  addressi'd  to  him  by  Mr.  Evarts,  lis  Secretary  of  State,  on  that  day. 
(MS.  Notes  to  Venezuela.  I.  197.1 


5J  52.]  RECOGNITION    OF   NEW    GOVERNMENTS.  153 

In  18^2  the  minister  of  the  United  States  was  instructed  to  recognize 

the  de  fu<:to  government  of  General  Crespo  if  it  was 
Crespo  Government.     -  -     i   i       ^i  i       •  .  ..     i 

accepted  by  the  people,  in  possession  ot  the  power 

of  the  nation,  and  fully  established.""" 

August  7,  1899,  '"the  insurgent  faction  in  the  state  of  Los  Andes 
under  Gen,  Cipriano  Castro"  was  reported  to  be 
•"completely  defeated."  September  o.  however,  the 
revolutionists  were  ''gaining  strength."^  September  14  President 
Andrade  left  Caracas  to  take  command  of  the  government  forces  in 
the  tield.*^  September  14  Valencia  was  taken  by  the  revolutionists, 
and  the  president  returned  to  Caracas.''  September  23  it  was  the 
general  opinion  at  Caracas  that  the  government  would  fall.'  October 
2»J  the  president  abruptly  left  Caracas,  and  em])arked  at  LaGuaira  for 
a  place  unknown.  The  vice-president  assumed  power  and  appointed 
a  new  cabinet,  the  previous  one  having  resigned;  Vnit.  owing  to  the 
unconstitutional  manner  of  the  president's  departure,  there  were 
doubts  as  to  the  validity  of  the  vice-president  succeeding  him.  In 
response  to  an  inquiry  whether  the  government  should  be  recognized, 
the  following  instruction  was  given:  "Wait  events.  Can  not  assume 
to  judge  conditional  title.  Test  of  recognition  is  complete  regency  of 
afi'airs  by  de  facto  government  capable  of  fulfilling  international  obli- 
gations. Meanwhile  transact  necessary  business  with  locally  respon- 
sible authorities.  "-^ 

October  22  General  Castro  arrived  in  Caracas  and  "was  heartih' 
welcomed."^  Next  day  the  '"acting  vice-president"  turned  over  the 
government  to  him.''  On  the  night  of  October  20  General  Hernandez, 
who  had  been  fighting  the  Andrade  government  and  supporting  Gen- 
eral Castro,  left  Caracas  with  about  2,(i()0  men  to  begin  an  uprising 
against  the  de  facto  government.''  The  de  facto  government  was  then 
"fairly  well  established.*  The  minister  of  the  United  States  requested 
authority  to  recognize  it  when  the  proper  time  had  arrived.  The 
Department  of  State  replied:  ""  If  the  provisional  government  is 
effectively  administering  government  of  nation  and  in  position  to  ful- 
fill international  obligations,  you  will  enter  into  de  facto  relations."' 

«Mr.  Foster,  Sec.  of  State,  to  Mr.  Scruggs,  telegram,  Get.  12,  1892,  Vor.  Rel.  1892, 
p.  635.  Mr.  Scruggs  telegraphed  notice  of  the  formal  recdgnition  of  the  new  govern- 
ment, Oct.  23,  1892'.     (For.  Rel.  1892,  p.  (i:i3.) 

i-For.  Rel.,  1899,  79:1 

<'  Id.  795. 

<1  Id.  796-797. 

^ Id.  797. 

/IMr.  Hay,  Secretary  of  State,  to  Mr.  Loomis,  minister  to  Venezuela,  telegram, 
October  23,"  1899,  For. 'Rel.,  1899,  802. 

(/For.  Rel.,  1889,  802. 

h  Id.  803. 

« Id.  803,  805. 

7  Mr.  Hay,  Secretary  of  State,  to  Mr.  Loomis,  minister  to  Venezuela,  telegram, 
November  8,  1899,  For.  Rel.  1899,  809. 


154  states:  recognition  and  continuity.  [§  53. 

Xovoniber  '20.  is'Jl*.  the  niini.ster  re}X)rted  that  he  had  on  that  day 
"entered  into  othcial  rehition.s  with  the  de  facto  jj^overnment  of  Gen- 
eral Castro."  who  had  assured  hini  that  he  possessed  the  niaehinery 
of  o;overnnient  throughout  the  Kepublio  and  had  the  support  of  the 
State  governments.  The  entrance  into  relations  had  been  delayed  in 
order  to  see  whether  anything  would  come  of  the  movement  begun  l)y 
General  Hernandez,  but  he  had  "not  once  otiered  battle  or  shown  any 
disposition  to  tight.""     The  act  of  recognition  was  approved.'' 

■*  Venezuela  has  once  more  undergone  a  revolution.  The  insurgents, 
under  General  Castro,  after  a  sanguinary  engagement  in  which  they 
suti'ered  much  loss,  rallied  in  the  mountainous  interior  and  advanced 
toward  the  capital.  The  bulk  of  the  army  having  sided  with  the 
movement.  President  Andrade  quitted  Caracas,  where  General  Castro 
set  up  a  provisional  government  with  which  our  minister  and  the 
representatives  of  other  powers  entered  into  diplomatic  relations  on 
the  L^oth  of  November.  1899." 

President  MeKinley,  Annual  Message,  Dec.  5,  1899. 

11.   Bolivia;   Fxtadok. 

§   58. 

Premising   his    instructions   with   the   statement   that   the    United 

States   did   "'  not  hasten    to    recognize   revolutionarv 
Bolivia;  Melgarejo  4.     ••   \     ^  •*     i     ..4.  j      j? 

yfovernments,      but    waited       to   see  gfrounds  loi'  re- 
Govemment.        '^         .  ~  , 

garding  them  as  permanently  organized  and  lirmlv 
e.stablished."  Mr.  Seward  approved  the  course  of  the  minister  of  the 
United  St{ites"in  declining  to  recognize,  officially,  the  provisional 
goveriunent  of  Bolivia."  which  had  "supplanted  the  administration  of 
General  Acha.  tii rough  a  revolution  effected  by  (Tcneral  Melgarejo.  by 
force  (»f  arms:"  and  directed  him.  if  his  course  wiis  ol>jected  to  by  the 
ruling  authority  in  Bolivia,  to  ask  for  his  pa.s.sports.  return  within 
convenient  reach,  and  report  his  proceedings."'  Six  months  later  the 
minister  was  instructed  that,  under  the  peculiar  circum-stances  sur- 
rounding the  (juestions  pending  between  the  South  American  repub- 
lics on  the  Pai-itic  and  the  Goveriunent  of  Spain,  the  President 
deemed  it  expedient  "  to  recogniz<>  the  actual  government  of  Bolivia, 
if  that  government  has  beconie  truly  and  in  fact  consolidated."'' 
Soon  afterwards  j)<>sitive  instructions  were  given  to  recognize  "the 
actual  government  now  in  power,  namely,  that  of  President  Melga- 
rejo." by  the  presentation  of  credentials.' 


"For.  Kel.,  isini.  s(nt-si(i.  sii-si2. 
''1.1.  S12. 

'Mr.  Sinvar.1,  Sec  of  State,   t.)  Mr.    Hall.  Sept.  28.  18<)5.  MS.  Inst.  Bolivia,  I.  80. 
See,  as  to  the  revolution.  J)!].,  ("or.  istiti,  II.  :-;27  et  se.j. 

'Mr.  Sewar.l,  Sec.  of  State,  to  Mr.  Hall.  Ai)ril21,  istiij.  Dip.  Cor.  18(}6,  II.  3:30. 
'  Mr.  Scwanl,  .S-c  of  Stat*-,  to  .Mr.  Hall,  .luly  l(t,  ISHti,  Dijj.  Cor.  18(j(),  II.  331. 


§53.]  RECOGNITION    OF    NEW    GOVERNMENTS.  155 

"Early  in  the  year  the  peace  of  Bolivia  was  distur})ed  by  a  succes.sfiil 

insurrection.     Tlie  L  nited  States  minister  remained  at 

Revolationof  1899.   .  .  j.      ^i.      j-         j.      ai        *  •  •    1         i.     -      i.\     j. 

his  post,  attending  to  the  American   interests  in  tliat 

quarter,  and  using-  }>esides  his  good  othces  for  the  protection  of  the 
interests  of  British  subjects  in  the  absence  of  their  national  represent- 
ative. On  the  establishment  of  the  new  government  our  minister  was 
directed  to  enter  into  relations  therewith. 

'"General  Pando  was  elected  President  of  Bolivia  on  October  iiSrd." 

President  ^Nk'Kinley,  Annual  Mef^sage,  Dec.  5,  1899.  On  receiving  a  report 
from  the  minister  of  the  United  States  of  the  serious  condition  of  affairs 
at  La  Paz,  Bolivia,  and  in  the  surrounding  country  in  February,  1899, 
the  Department  of  State  instructed  him  that  he  could  have  "no  diplo- 
matic relations  with  the  insurgents,  implying  their  recognition  by  the 
United  States  as  the  legitimate  government  of  Bolivia,  but  that,  short 
of  such  recognition,"  he  was  "entitled  to  deal  with  them  as  the  respon- 
sible parties  in  local  possession,"  to  the  extent  of  demanding  forhim.-^elf 
and  for  all  Americans  "within  reach  of  the  insurgent  authority  within 
the  territory  controlled  by  them  the  fullest  protection  for  life  and  prop- 
erty." Should  the  situation  at  La  Paz  become  "  unenduraVjle  or  more 
perilous"  he  was  to  collect  all  Americans  within  reach  and  quit  the 
city,  taking  them  with  him,  and  demanding  adequate  escort  to  the  nearest 
place  of  safety.  ( 3Ir.  Hay,  Secretary  of  State,  to  ]Mr.  Bridgman,  minister  to 
Bolivia,  March  14, 1899,  MS.  Inst,  to  Bolivia,  II,  113. )  Subsequently  a  provi- 
sional junta  of  government  was  formed,  and  upon  his  representation  that 
it  was  unopposed  and  orderly  in  its  administrati(jn  the  American  nunister 
was  instructed  that  if  the  provisicjnal  government  was  "de  facto  admin- 
istered by  the  junta  according  to  regular  methods  affording  reasonable 
guarantees  of  stability  and  international  responsibility  and  without  organ- 
ized resistance"  he  should  notify  the  junta  that  he  was  "authorized  by 
the  President  to  enter  into  relations  with  the  provisional  government," 
and  advise  the  Department  of  State  of  his  action  in  order  that  the  Presi- 
dent might  make  appropriate  reply  to  the  autograph  letter  addressed  to 
him  by  the  junta  on  April  26,  1899.  (Mr.  Adee,  Acting  Secretary  of  State, 
to  Mr.  Bridgman,  August  22,  1899,  MS.  Inst.  Bolivia,  II.  126;  For.  Pel. 
1899,  107.) 

"  As  respects  the  question  of  recognizing  the  new  revolutionary  govermnent 
of  Bolivia,  Mr.  Bridgman  had  been  instructed  to  enter  into  relations  with 
it,  when  it  shall  apjiear  to  be  established  in  control  of  the  machinery  of 
administration  and  in  a  position  to  fulfill  its  international  ol)ligations. 
At  the  date  of  the  last  dispatches  from  Mr.  Bridgman,  October  20,  he 
was  deferring  action  upon  that  instruction  until  the  constitutional  assemlily 
shall  have  convened.  By  a  telegram  dated  October  25,  I  have  since 
learned  that  (ieneral  Pando  was  on  that  day  elected  President  of  Bolivia, 
and  I  have  little  doubt  that  Mr.  Bridgman  will  have  soon  carried  out  the 
instructions  sent  him  in  regard  to  the  recognition  of  (ieneral  ]*ando's  gov- 
ernment by  the  United  States."  (Mr.  Hay,  Secretary  of  State,  to  Lord 
Pauncefote,  British  ambassador,  November  16,  1899,  For.  Pel.   1899,  844. 

Septem})er  O,  1895,  the  Department  of  State,  on  receiving  from  the 

United  States  consul-general  at  (luayaquil  information 

of  the  defeat  of  the  (Jovernment  forces  in  P^cuador  b}" 

General  Alfaro.  instructed  the  American  minister  at  Quito  that  "  inter- 


150  states:  recognition  and  continuity.  [§  5-t. 

course  tVn-  the  disposal  of  current  matters  affecting  American  interests 
witli  the  de  facto  authority  iidministering  the  public  affairs  of  the 
St5it<>  with  the  general  acquiescence  of  its  })eople  and  controlling  the 
machinery  of  government  to  that  end  is  in  accordance  with  the  ti^adi- 
tional  policy  of  this  Government.  In  accordance  with  that  policy,  it 
is  for  you  on  the  spot  to  determine  with  sound  discretion  the  respon- 
sible authority  to  which  you  are  to  address  yourself.  Any  professed 
formalities  of  recognition  should  await  the  instructions  of  your  Gov- 
ernment, which  may  be  sought  and  obtained  by  cable,  if  necessary." 

Mr.  Adee,  Acting  Sec.  of  State,  to  Mr.  Tillman,  minister  to  Ecuador,  Sept.  6, 
1895,  For.  Rel.  1895,  I.  246. 

"The  precedents  by  which  the  intercourse  of  the  United  States  with 
foreign  nations  is  governed  have  established  the  clear  right,  under  the 
law  of  nations  and  treaties,  to  maintain,  through  its  properly  appointed 
agents,  conununication  with  the  de  facto  authorities  of  a  foreign  state 
upon  all  matters  affecting  either  this  Government  or  its  citizens,  the 
onh'  limit  to  this  proviso  being  that  our  agents  are  bound  to  avoid 
interference  in  the  domestic  questions  of  the  State.  In  the  present 
instance  no  such  interference  appears  likely,  or  even  possible,  as  the 
government  of  General  Alfaro  is  understood  to  be  in  full  possession  of 
the  machinery  of  the  State.  The  right  and  propriety ,  therefore,  of  your 
conducting  all  current  relations  with  it  in  your  capacity  as  minister  to 
Ecuador  can  not  be  questioned. 

•'As  to  formal  recognition,  the  practice  of  this  Government  has  been 
to  enter  into  effective  relations  with  the  de  facto  government  when  it 
shall  have  been  fully  established  with  the  general  consent  of  the  people. 
1  assume  from  the  communication  of  Senor  Carbo  that  such  a  govern- 
ment has  been  organized  in  Ecuador,  although  its  style  and  title  are 
not  stjited  by  him.  It  would  seem  to  be  a  provisional  government, 
controlled  by  a  council  of  ministers,  with  General  Alfaro  as  its  presi- 
dent and  supreme  head  of  the  State.  On  this  understanding,  and 
being  satished  that  the  new  Government  is  in  possession  of  the  execu- 
tive forces  of  the  nation,  and  administering  the  same  with  due  regard 
foi-  tile  obligations  of  international  law  and  treaties,  vou  will  enter 
into  full  relations  with  it.'' 

Ml.  Oiiu'v,  Secretary  of  State,  to  Mr.  Tillman,  mini.ster  to  Ecuador,  Novem- 
ber (i,  1895,  For.  Rel.  1895,  I.  248,  249. 

12..  Peru. 

§  54. 

January  ?>!.  Isso.  it  was  formally  announced  that  the  President  of 
the  United  States  had  "decided  to  recognize  the  gov- 

Pierola Government.  i.        4.    i  i-   v,    j    •       ti  r.      tt       t>         ii  r-w 

ernment  established  in  Peru  bj'  His  Excellency  Don 
Nicolas  de  Piin-ola  and  to  rec(Mve  th(?  ceremonial  letter  of  the  latter,  it 


§  54.]  RECOGNITION    OF    NEW    CIOVERNMENTS.  157 

being  understood  *  *  *  that  the  people  of  Peru  were  driven  to 
the  acceptance  of  a  new  government,  on  a  provisional  basis,  by  the 
external  pressure  of  their  affairs,  and  that  the  accession  of  (xeneral 
Pierola  to  power  was  not  accomplished  by  civil  strife  or  factious  in- 
surrection." ^' 

May  9,  1881,  Mr.  Blaine,  replying  to  a  dispatch  of  Mr.  Christiancy, 
United  States  minister  at  Lima,  in  which  it  was  stated 
that  Chile  refused  to  recognize  General  Pierola  as  rep- 
resenting the  civil  authority  in  Peru,  and  that  Senor 
Calderon  was  at  the  head  of  a  provisional  government,  said:  ''If  the 
Calderon  government  is  supported  by  the  character  and  intelligence 
of  Peru,  and  is  realh^  endeavoring  to  restore  constitutional  govern- 
ment with  a  view  both  to  order  within  and  negotiation  with  Chili  for 
peace,  you  may  recognize  it  as  the  existing  provisional  government, 
and  render  what  aid  you  can  b}^  advice  and  good  offices  to  that  end, 
Mr.  Elmore  has  been  received  by  me  as  the  confidential  agent  of  such 
provisional  government."^  Mr.  Christiancy,  "seeing  that  the  ques- 
tion whether  the  Calderon  government  was  a  government  de  facto  was 
not  expressly  made  a  condition,"  recognized  it  on  the  26th  of  -June, 
although  he  did  not  then  consider  it  a  government  de  factoS  He 
thought  the  recognition  " premature;" '^  and  on  October  4,  1881,  Mr. 
Hurlbut,  his  successor,  reported  the  practical  suppression  of  the  gov- 
ernment by  the  Chilean  forces.''  October  31,  1881,  Mr.  Hurlbut  was 
instructed  to  '"continue  to  recognize  Calderon  government' until  oth- 
erwise specially  instructed."-'"  This  instruction  was  in  substance 
repeated,  November  2(5,  1881,  President  Calderon  having  in  the  mean- 
time been  arrested,  together  with  his  minister  for  foreign  affairs,  by 
the  Chilean  military  authorities.^'  He  was  afterwards  transported 
to  Chile  as  a  prisoner,  and  Senor  Montero,  as  vice-president,  repre- 
sented, first  at  one  place  and  then  at  another,  the  authority  of  his 
government. 

""It  is  now  claimed  that  the  government  of  Calderon-lVIontero  has  lost 
the  attributes  of  a  de  facto  government,  and  it  is  urged  that,  not  having 
the  support  of  the  people,  it  is  no  longer  entitled  to  recognition.  The 
information  furnished  this  Department  on  the  subject,  however,  is  most 

«Mr.  Evarts,  Sec.  of  State,  to  Senor  Don  Jose  Carlos  Tracy,  Jan.  31,  1880,  MS. 
Notes  to  Peru,  II.  31.  The  answer  to  the  ceremonial  letter  of  President  Pierola  was 
transmitted  "through  the  usual  channel  of  the  United  States  diplomatic  representa- 
tive at  Lima."  (Ibid.;  Mr.  Evarts,  Sec.  of  State,  to  Mr.  Christiancy,  Feb.  19,  1880, 
MS.  Inst.  Peru,  XYI.  433.) 

^  For.  Rel.  1881,  p.  909. 

«Mr.  Christiancy  to  Mr.  Blaine,  June  28,  1881,  For.  Rel.  1881,  19. 

''Dispatch  of  July  6,  1881,  For.  Kel.  1881,  920. 

'Mr.  Hurlbut  to  Mr.  Blaine,  Oct.  4,  1881,  For.  Rel.  1881,  935. 

/Mr.  Blaine,  Sec.  of  State,  to  Mr.  Hurlbut,  telegram,  Oct.  31,  1881,  For.  Rel.  1881, 
945. 

<J  For.  Rel.  1881,  947,  953. 


158  states:  recognition  and  continuity.  [§54. 

conflictiiit;:.  ami  is  luiturally  colored  by  the  sentiments  of  the  different 
observers.  On  the  one  hand,  it  is  said  that  Geneml  lglesia.s  is  sup- 
ported by  fully  tive-sixths  of  the  population  of  Peru,  that  the  prov- 
inces of  the  north  and  center  are  solidly  united  in  his  aid  and  in 
approval  of  his  plan  of  settlement,  while,  on  the  other  hand,  we  are 
told  that  Calderon  was  never  so  stronjjf  as  at  present,  that  his  own 
moral  influence  and  the  physical  force  of  his  followers  are  imprej^- 
uaV)le  in  Arequipa,  and  that  a  majority  of  his  countrymen  support  and 
approve  his  course.  It  is  evident  that  no  peace  can  l)e  made  unless 
Peru  is  represented  in  its  negotiation  by  someone  having  the  sup- 
port of  his  fellow-countrymen  and  whose  action  will  meet  with  their 
approval. 

"In  Senor  Calderon  this  Government  understood  that  it  recognized 
such  a  ruler.  As  at  present  advised,  it  would  not  hastily  withdraw 
or  transfer  that  recognition.  Should  the  facts  l)e  as  alleged  )\v  the 
friends  of  General  Iglesias.  this  Government  will  not,  by  adhering 
to  the  recognition  of  Seiior  Calderon.  impede  the  advance  toward  an 
amicable  adjustment  of  the  difficulty.*" 

Mr.  Frelinghuysen,  Sec.  <>f  State,  to  Mr.  Plielps,  U.  S.  minister  to  Peni,  Jiilv 
2»3.  1883,  For.  Rel.  188.3,  709. 

"The  contest  l)etween  Bolivia.  Chili,  and  Peru  has  passed  from  the 
stage  of  strategic  hostilities  to  that  of  negotiation,  in 

g  esias    overn     ^^j^j^^.j^   ^^^  counsels  of   this  Government   have   been 
ment. 

exercised.     The  demands  of  Chili  for  absolute  cession 

of  territory  have  been  maintained,  and  accepted  by  the  party  of  Gen- 
eral Iglesias  to  the  extent  of  concluding  a  treaty  of  peace  with  the 
Government  of  Chili  in  general  conformity  with  the  terms  of  the 
protocol  signed  in  May  last  between  the  Chilian  commander  and  General 
Iglesias.  As  a  result  of  the  conclusion  of  this  treaty.  General  Iglesias 
has  been  formally  recognized  by  Chili  as  Pr<?sident  of  Peru,  and  his 
government  installed  at  Lima,  which  has  been  evacuated  by  the  Chili- 
ans. A  call  has  ])een  issued  by  General  Iglesias  for  a  representative 
a.sseml)ly.  to  l)e  elected  on  the  13th  of  January,  and  to  meet  at  Lima 
on  the  1st  of  March  next.  Meanwhile  the  provisional  government  of 
(ietuMal  Iglesias  has  applied  for  recognition  to  the  principal  powers  of 
America  and  Europe.  When  the  will  of  the  Peruvian  people  shall  be 
manifested.  I  shall  not  hesitate  to  recognize  the  government  approved 
by  them." 

President  Arthur,  Thinl  Annual  Message.  Dee.  4,  ISKS. 

See  Mr.  Freliiitrhuysfii,  Sec.  of  State,  to  Mr.  Logan,  March  17,  1884,  MS.  Inst, 
("liil.-.  XVII.  1.31. 

The  congress  convoked  by  General  Iglesias  met  and  ratified  the 
treaty  and  contii-med  him  in  power,  and  the  United  States  was  on  the 


§54.]  EECOGNITION    OF    NEW    GOVERNMENTS.  159 

point  of  extending  a  formal  recognition  when  his  minister  of  foreign 

affairs  in  an  interview  with  the  diplomatic  corps  demanded  of  them  an 

immediate  recognition,  and  upon  their  refusal  to  accord  it  declared 

that  relations  with  the  legations  must  cease.     The  (xovernment  of  the 

United  States,  regarding  the  question  of  recognition  as  one  addressed 

to  its  "independent  judgment  and  discretion,"  uninfluenced  l)v  ''an}-- 

thing  in  the  nature  of  a  menace,""  authorized  its  minister  to  present 

his  credentials  to  President  Iglesias  on  a  satisfactory  reti'action  of  the 

attitude  of  the  minister  of  foreign  affairs  toward  the  legations.'^    The 

retraction  was  made,  and  recognition  duh-  accorded.'' 

December  2,  1885,  as   the   result  of   a   revolution   under  General 

Caceres,  President  Iglesias  was  deposed,  and  the  Gov- 

ep  0  0  g  ornment  was  committed  to  a  council  of  ministers  till 
sias;  Interregnum. 

a  popular  election  should  be  held.'' 

''  If  for  no  other  reason,  a  sound  motive  for  avoiding  hasty  recogni- 
tion in  the  present  instance  is  found  in  the  circumstance,  reported  by 
you,  that  the  arrangement  whereby  Iglesias  and  Caceres  renounced 
their  claims  to  the  executive  power  and  delegated  three  commissioners 
on  each  side  to  devise  a  provisional  government,  was  brought  about 
through  the  good  offices  of  the  diplomatic  ])ody  in  Lima.  It  is  pre- 
sumed that  you  joined  in  this  exercise  of  good  offices,  at  least  no  inti- 
mation to  the  contrary  has  been  received.  If  so.  your  purpose  was 
laudable.  Any  friendly  steps  toward  permitting  the  Peruvians  to 
reestablish  public  order  and  good  government  are  conunendable.  But 
the  United  States,  holding  steadfastly  to  the  principles  of  constitutional 
self-government,  can  not  assume  to  forejudge  the  popular  will  of  Peru 
1)V  ratifying  and  conlirming  an  experimental  and  provisional  order  of 
things  they  may  have  indirectly  helped  to  create. 

"  It  will  l)e  your  province  to  maintain  the  most  friendly  and  intimate 
relations  with  whatever  government  may  be  fully  esta))lished  and  in 
possession  of  the  power  of  the  nation.  It  is,  however,  for  the  Presi- 
dent to  determine  when  and  how  formal  recognition  of  the  new  go\- 
ernment  of  Peru  by  the  United  States  shall  be  effected.  Probably 
credentials  will  be  sent  to  you  in  due  time  to  ])e  presented  to  the 
President  of  Peru  when  his  authority  shall  have  been  conffrmed  by 
the  Peruvian  people.  In  point  of  fact,  your  intercourse  with  the  gov- 
ernment during  the  l)rief  interrcgmuu  will  ))e  as  full  iind  direct  as 


«Mr.  Frdiujrhuyt-en,  Sec.  of  State,  to  Mr.  Phelp!^,  April  •),  1S84,  MS.  Iii.'^t.  Peru, 
XVII.  47. 

''Mr.  Frelingliuyt^en,  See.  of  State,  to  :\Ir.  Pheli).<,  telegram,  April  18,  1SS4,  :\IS.  liif^t. 
Peru,  XVII.  50. 

'Mr.  Phelps,  miuister  to  Peru,  to  Mr.  Freliugluiyseu,  Sec.  of  State,  April  29,  1884, 
For  Rel.  1884,  p.  420;  Mr.  Frelinghuys^en,  See.  of  State,  to  Mr.  Cihhs,  :\Fay  U»,  1884. 
MS.  Inst.  Peru,  XVII.  55. 

d  For  Kel.  1885,  078. 


It^O  states:  recognition  anp  oontintity.  [^  55. 

thouirli  tht'  fornmlitv  of  rocogrnition  had  taken  pla(^.  and  you  will 
soru}>ulously  avoid  any  abst^'ntion  which  niiofht  appear  to  denote  dis- 
trusx  or  opposition  on  our  part." 

Mr.  Bayani.  Ser.  of  State,  to  Mr.  Buck,  IVc.  h\  ISSn.  MS.  Inst.  PtTU.  XVII. 

192.     Set^  For.  Rel.  ISSvS,  I,  V»98.  9iM,  a?;  to  Haytian  Rev<»lution  of  1SS8. 
Sff.  aljso.  at;  to  <it  facto  and  <ir  jurv  e;overinnent.s,  Mr.  Bayard,  Sw.  of  State,  to 

Mr.  Buck.  Feb.  1,S,  1SS6,  MS.  Inst.  Teru,  XVll.  2(V>. 

**(>n  the  UUh  ultimo  Mr.  Elmore  [who  had  for  t<ome  time  been  Peru- 
vian minister  at  Washinofton]   communicat^^d  to  the 

Deinirtment.  the  letttM-  of  the  live  notables  who  had 
erament.  '^ 

assumed  control  of  the  Peruvian  administration,  an- 
nouneintr  themselves  as  a  provisional  irovernment.  It  was  arrano^ed 
in  conference  with  Mr.  Elmore  that  the  addresses  to  be  made  on  pre- 
sentinohis  lett<>rof  recall  (2Sth  ultimo)  should  have  the  effect  of  recocj- 
nizino-  the  provisional  o-overnment  as  the  temporaiy  repository  of 
Peruvian  authority,  it  l>ein<]:  understot)d  that  it  is  to  be  .succeeded 
shortly  bv  a  President  and  C\>no;ress  already  elected  by  the  people  of 
Peru." 

' '  The  f ollowincr  t^leg"ram  was  sent  you  on  the  :^7th  (Tuesday ) :  '  Presi- 
dent receives  Peruvian  mini.ster  Wednesday  to  present  letter  oi  i-ecall; 
at  the  same  time  recog"nizes  provisional  tjovernment  as  about  to  be 
leoitimately  succeeded  by  President  and  C'ong-ress  elect.  You  will 
announce  this  friendly  action  same  day  (twenth-eio-hth).*" 

Mr.  Bayard,  Sec-,  of  State,  to  Mr.  Buck,  May  1,  1S86,  MS.  lust.  Peru.   XVll. 
21-1. 

VS.    liRAZlL. 

On  November  17.  issH.  Mr.  Adams.  I'nited  States  minister  to  Bra- 
zil, telegraphed:  "Imperial  family  sailed  to-day. 
Government  dt  fdcfo.  with  ministry, .  established. 
Perfect  order  maintained.  Important  we  acknowledg-e  Republic 
first.""  The  events  thus  reported  were  the  results  of  a  sudden,  unex- 
pected, and  I (loodless  revolution  committed  on  the  two  preceding  days 
by  the  militaiy  and  naval  forces  at  Rio  de  Janeiro,  who  arrested  and 
depctsed  the  ministry,  proclaimed  a  republic,  and.  holding  the  Emperor 
a  prisoner  in  the  jnilace.  ordered  the  imperial  family  to  leave  the  country 
within  tweiity-foui-  hours.''  November  19  Mr.  Adams  was  instructied 
to  ■•maintain  dij)loniatic  relations  with  the  provisional  government  of 
Brazil."'  The  j)r()visional  government  announced  that  it  would 
respect  all  contracts  and  engagements  entered  into  by  the  state,  and 
confirmed  the  powers  given  ]>y  the  Empire  to  the  Brazilian  represent- 

«To  Mr.  Blaine,  Sec.  of  State,  For.  Kel.  1889,  60. 

''Mr.  Adams  to  Mr.  I'.laine,  telegram,  Nov.  16,  1889,  For.  Rel.  1889,  59;  same  to 
same,  Nov.  19,  18S9,  id.  60. 

<  Telegram  of  Mr.  Blame,  Sec.  of  State,  to  Mr,  Adams,  For.  Rel.  1889,  63. 


^  5.0. J  EECKXJIflTIOif    OF   JS'JEW    OUVJiKIs.MJiJS'av.  1€»1 

ative)*  in  ^^'a^iljJJJft<JfJ.  where  the  Jutej'ijatiofiaJ  Ann^vu^nu  (.'-ouferejacie 
and  the  JuteiuatioiiaJ  Maritime  (.'oulVjenci-  weiv  tbeij  iu  t^ej^iou." 
\oveJLU^>er  25  J\1j'.  AdaJHi?  rejxji-ted  that  the  Arg-eutiue  iiepubJic.  Ohile. 
aiid  L'ruj^uay  ijiad  reoognizied  the  uew  jio\'<')-nmpMt.'^  N.'o\f:*Lrjl»ej'  oO  he 
■ '  waw  iuhlrueted  that  so  i><x>ij  as  a  ijiajoritv  of  the  people  of  Brazil 
should  have  sijr'jihed  their  afsisent  tfj  the  e^;tabli^hmellt  aud  maitite- 
iiaiice  of  the  KepubJie  he  was  Uj  g-i\e  it.  on  behalf  of  the  United  ^tate^. 
a  foniJtal  and  (;<jrdia]  recognition/"' 

"The  r<dcent  revolution  in  Bj-aziJ  in  fa\'oj'  of  the  e^•tablishmeDt  of  a 
repubJi<*4in  form  of  g•o^'erument  i^  an  event  of  jrreat  int^ereKt  to  the 
I 'nit<-d  .State*;.  Our  minist^-'j-  at  Rio  de  Janeijo  was  at  once  iuKtruct^id 
Uj  maintain  friendly  diplomatic  relation*;  with  the  pro^■iKional  govern- 
ment, and  the  J:iraziliar.  repreM:'ntative*;  at  thib  capital  wej'e  instruetted 
by  the  pro\-isional  go\'ei-nment  to  <'ontinue  theij-  functions.  Oui"  friendly 
int<^rcour)se  with  Brazil  lia>?.  therefore,  sufleied  no  interruption. 

•'Our  mini8t<:'r  has  IxT'en  further  instruct^t'd  to  extend  on  the  pait  of 
this  (jrovernnient  a  formal  and  e^jrdial  re-cognition  of  the  new  iiepublii' 
ISO  (soon  as  the  majority  of  the  |>e><^ple  of  Brazil  shall  ha\  e  signified  their 
asbcnt  to  its  establishment  and  maintenance." 

"The  minist^-^r  of  Brazil  in  this  capital.  Mr.  Amaral  ^'alente.  and 
liis  ass<X'iate  the  Jirazilian  niinistxt-r  on  sjx^cial  mission.  Mi'.  Mendon<;a. 
ha\ ing  rex.-ently  r<i<.*€i\'ed  new  letteis  of  credeno-  as  representatives  of 
the  I'nited  States  of  Jirazil.  they  wei*e  rec<^i\'ed  in  that  c^jjacity  by  the 
the  President  on  \\'ednesday  the  2'nh  instant.     *     *     * 

'■'The  President,  on  the  y/Kh  instant.  .s<^nt  Uj  the  Senate-  the  follow- 
ing new  noujination  in  your  rut^r. 

""lloU'it  Adams,  jr..  of  Pennsylvania,  now  ac-credited  envoy  extra- 
ordinary and  minister  plenijx>t<^ntiary  U)  the  Enjpire  of  BraziL  to  l>e 
en\'oy  extrafjrdinary  and  ministt^r  plenifwtentiary  to  the  United  States 
of  Brazil." 

'^I'pon  confirmation  there^jf  by  the  ^'iiaU^.  a  Jiew  <<jmmission  and 
lett<'r  of  <reden<'e  will  \Kt  s^r-nt  to  you.  Upon  delivery  of  the  latter,  in 
the  usual  way.  the  suc<-essi\e  stages  of  diplomatic  prix-edure  in  regard 
to  th«'  (liange  of  (government  in  Brazil  and  the  recijjrx-al  r^prer^nta- 
tion  of  the  two  <'ountries  will  have  been  complet<:<l."" 

Mr.  Blaine,  iSec.  of  Ktat<^,  V>  Mr.  A<iamH.  Jaii.  31.  ]8!<i.  Mr^.  In^t.  iirdzU.  X\']J. 


«For.  liel.  1889,  60,  70,  71.  See  alw  Mr.  Blaine  U-  Mr.  A<iaiJiH.  teiejrraJiih.  Nov. 
19  and  Nov.  2:i  1889,  MH.  InM.  Brazil.  XVII.  422,42.1 

<- TelejrraiJj,  For.  Itel.  1889,  ^1  }v*  aiiso  dinj^atch  of  Mr.  A<iaIIl^  "f  Dw.  «>.  1889. 
announcinj;  re^^ofrnition  by  Hwitzerland,  Fran<-*'.  an<l  tJiePojj<-.  The  <'t)jer  Eurojieao 
{^.»wen^  reHunje<i  <liploinati<'  n-latioui*  un<>ffi<-ja]ly.     (For.  K»'l.  38^9.  •».  j 

'-■  Telejrraiji  of  Mr.  Blaine,  Be<;.  of  state,  For.  lUA.  1889.  <><>. 

11.  Doc.  551 U 


162  states:  eecognition  and  continuity.      [§§  56-57. 

"Dispatches  en  route  will  inform  you  of  the  full  recognition  of  the 
United  States  of  Brazil,  both  by  the  President  and  Congress.  You 
have  been  nominated  and  confirmed  as  minister  plenipotentiary  to  the 
new  Republic." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Adaiius,  telegram,  Feb.  20,  1890,  :MS.  Inst. 
Brazil,  XVII.  446. 

Congress,  by  a  joint  resolution  approved  Feb.  19,  1890,  congratulated  the 
people  of  Brazil  "on  their  just  and  peaceful  assumption  of  the  powers, 
duties,  and  respon.«il)ilities  of  self-government,  based  upon  the  free  con- 
sent of  the  governed,  and  in  their  recent  adoption  of  a  republican  form 
of  government."     (For.  Rel.  1890,  21.) 

This  resolution  was  communicated  to  the  Brazilian  Government  through  the 
legation  of  the  United  States  at  Rio  de  Janeiro.     (For.  Rel.  1890,  22. ) 

For  the  response  of  the  Brazilian  congress,  Jan.  21,  1899,  see  For.  Rel.  1891, 
50-51. 

'"'Toward  the  end  of  the  past  year  the  only  independent  monarchical 
government  on  the  Western  Continent,  that  of  Brazil,  ceased  to  exist 
and  was  succeeded  b}'  a  Repul^lic.  Diplomatic  relations  were  at  once 
established  with  the  new  Government,  but  it  was  not  completely 
recognized  until  an  opportunity  had  been  afforded  to  ascertain  that  it 
had  popular  approval  and  support.  AVhen  the  course  of  events  had 
yielded  assurance  of  this  fact,  no  time  was  lost  in  extending  to  the 
new  Government  a  full  and  cordial  welcome  into  the  family  of  Ameri- 
can Commonwealths,  It  is  contidenth'  believed  that  the  good  rela- 
tions of  the  two  countries  will  be  preserved,  and  that  the  future  will 
witness  an  increased  intimacy  of  intercourse  and  an  expansion  of  their 
mutual  commerce." 

President  Harrison,  Annual  Message,  Dec.  1,  1890. 

14.  Chile. 
§56. 

On  the  overthrow  of  the  Balmaceda  Government  in  Chile  by  the 

Congressionalists  in   1S91.  the  minister  of  the  Ignited 
Bevolutionof  1891.  ^.    .         ^  q      .  •  •      ^        ^   j  *  •       ^u 

States  at  Santiago  was  instructed  to  recognize  the  new 

Government  if  it  was  accepted  by  the  people.* 

15.   Hawaii. 
§  57. 

After  the  deposition  of  the  monarchy  in  Hawaii  in  .Tanuary,  1893, 

n'pr(\sontatives  of    the  provisional  government  were 

Deposition    of    the  •       i     .  -n-     i  •       .  i  ^        ^  i     i    i 

„        ,  received  at  Washington,  where  a  treaty  was  concluded 

with  them  on  the  14th  of  February  for  the  annexation 

of  the  islands  to  the  United  States.''    This  treaty  was  withdrawn  from 

«  See  For.  Rel.  1891,  159.  b  For.  Rel.  1894,  App.  II.  197-205. 


S  58.]  RECOGNITION    OF    NEW    GOVERNMENTS.  lf>3 

the  Senate  ])y  the  succeeding  Administrjition.  Ixit  official  relations  with 
the  provisional  government  were  continued."  In  August,  1894,  the 
constitutional  government  of  the  Republic  of  Hawaii  was  forniallv 
recognized.'^ 

16.   Santo  Domingo. 

§  58. 

'"The  neighboring  island  Repul)lic  of  Santo  Domingo  has  lately 
l)een  the  scene  of  revolution,  following  a  long  period 
■  of  tranquillity.  It  began  with  the  killing  of  President 
Heureaux  in  'Fuly  last,  and  culminated  in  the  relinquishment  by  the 
succeeding  vice-president  of  the  reins  of  government  to  the  insurgents. 
The  first  act  of  the  provisional  government  was  the  calling  of  a  presi- 
dential and  constituent  election.  Juan  Isidro  Jimenez,  having  been 
elected  President,  was  inaugurated  on  the  14th  of  November.  Rela- 
tions have  been  entered  into  with  the  newly  established  Government.'' 

rref^ident  McKinley,  Annual  ^lessage,  Dec.  5,  1.S99. 

OctolKT  19,  1899,  Mr.  Adee,  Second  Assistant  Secretary,  acknowledjring  the 
receipt  of  a  dispatch  from  ]Mr.  Maxwell,  U.  S.  consul-general  at  San 
Domingo  City,  with  reference  to  aii  official  notification  which  the  latter 
had  received  of  the  formation  of  the  provisional  government,  said: 

"  The  Department  has  properly  instructed  Mr.  Powell  in  the  matter  with  a 
view  to  his  entering  into  full  relations  with  the  provisional  government 
upon  his  return  to  his  post.  In  the  meantime,  and  so  long  as  the  de  facto 
character  of  the  government  shall  appear  to  be  duly  established  and  its 
power  to  administer  public  affairs  and  fulfill  international  obligation.*  shall 
be  evident,  you  will  continue  to  maintain  intercourse  with  it,  so  far  as  may 
be  necessary  for  the  transaction  of  consular  business,  exi)laining,  how- 
ever, to  Senor  Ferrerasthat  you  will  do  so  provisionally  and  subject  to  the 
formal  action  to  be  taken  in  due  time  by  the  United  States  diplomatic 
representative."     (169  ;MS.  Inst,  to  Consuls,  506.) 

For  the  formal  recognition  of  the  elective  government  of  President  Jimenez, 
January  17,  1900,  see  For.  Rel.,  1900,  425.  See  also  President  McKinley's 
annual  message,  December  3,  1900. 

September  1,  1899,  shortly  after  the  assa.s.sination  of  President  Ileui-eaux, 
^Ir.  Hay,  as  Secretary  of  State,  telegraphed  to  the  minister  of  the  United 
States:  "Report  when  effective  and  responsible  de  facto  government  is 
organized  in  Santo  Domingo,  but  take  no  steps  toward  recognition  without 
explicit  instructions."  (For.  Rel.  1899,  248.)  October  19,  1899,  Mr.  Hay 
wrote:  ''Upon  your  being  satisfied  that  the  new  government  of  Santo 
Domingo  is  in  possession  of  the  executive  forces  of  the  nation  and  admin- 
istering the  public  affairs  with  due  regard  for  the  obligations  of  interna- 
tional law  and  treaties,  you  will  enter  into  full  relations  with  it.     This  is 


«For.  Rel.  1894,  App.  II.  421,  431.     Also,  S.  Doc.  40,  54  Cong.  2  sess.  5. 

Jan.  20,  1880,  the  consul  of  the  ['nited  States  at  Apia  was  instructed  to  n-cogjiize 
Malietoa  as  King  of  Samoa.  (MS.  Inst,  to  Consuls,  XCIV.  64.3:  S.  Doc.  40,  54  Cong. 
2  sess.  14.) 

''For.  Rel.  1894,  358-360.  See,  also,  Presdent  Cleveland's  Annual  Message,  Dec. 
3,  1894. 


164  states:  recogtotton  and  coNTiNriTY.  [§  59. 

(loiK-  ]<y  your  addressing  a  note  to  the  Dominican  minister  of  foreign  rela- 
tions." (Mr.  Hay,  Secretary  of  State,  U*  Mr.  Powell,  minister  to  Santo 
Domingo,  October  19,  1899,  For.  Rel.  1899,  248,  249.)  Subsequently  Mr. 
Powell  was  <lirecte<l  to  carry  out  this  instruction  by  entering  into  relations 
with  the  government  establishe<l  under  President  Jimenez.  (Mr.  Hay, 
Secretary  of  State,  to  Mr.  Powell,  minister  to  Santo  Domingo,  January  5, 
1900,  For.  Rel.  1899,  2o.3. )  President  Jimenez  was  publicly  inaugurated 
Noveml>er  15.  18iHt,  and  duly  appointed  a  cabinet.  (  For.  Rel.  1899,  251.) 
"This  Goveniment  has  never  recognized  Cabral  as  even  entitled  to  the  rights 
<^if  a  l)elligerent.  Certainly,  therefore,  it  can  not  acknowledge  any  claim 
of  his  to  rule  any  part  of  the  territory  of  the  Dominican  Republic.  It  is 
l)erliaps  sui>erfluous  to  add  that  this  Government  has  no  connection, 
direct  or  indirect,  with  the  association  which  has  Ixjught  or  lease*!  from 
Baez  certain  territorA-  around  the  Bay  of  Samana.  The  enterprise 
adverte<l  to  has  no  other  claims  uixm  us  than  other  similar  enterprises  of 
citizens  of  the  United  States  in  foreign  countries,  which  must  l>e  under- 
taken at  their  own  risk  and  subject  to  the  laws  of  such  coimtries."  (Mr. 
Fish,  Sec.  of  State,  to  Mr.  Bas.sett,  Mar.  26,  1873,  MS.  Inst.  Hayti,  I.  287. ) 

IV.  lU:rO(;yjTIOX  of  BELLiaEREScY. 

1.  CoxniTioxs  AND  Effects  of  Rkco*;xition. 

^  59. 

It  i>  only  in  recent  times,  with  the  development  of  the  .sy.stem  of 
neiitiality.  that  the  .subject  of  the  recognition  of  l)elligerency  ha.s 
ucquired  scientilic  precision  and  consistency.  Where  the  armed  con- 
flict is  l)etween  independent  nations,  no  embarra-ssment  arises,  .since 
the  parties,  whenever  the  existence  of  a  state  of  war  is  duly  established, 
immediately  become  entitled  to  the  rights  of  belligerents.  But  in  the 
case  of  insurrection  or  revolt  the  question  is  le.ss  simple.  It  is  said  to 
have  })een  "the  constant  practice  of  European  nations,  and  of  the 
United  iStates.  to  'look  upon  belligerency  as  a  fact  rather  than  a 
principle."  holding  with  Mr.  Canning  that  'a  certain  degree  of  force 
and  consistency  acquired  by  a  mass  of  popidation  engaged  in  war  enti- 
tled that  population  to  })e  treated  as  belligerent.*""  The  determina- 
tion, however,  of  the  (question  whether  such  a  condition  has  been 
attained  invt)lves  various  considerations,  which  will  be  pre.sented 
below. 

The  njere  recognitif)n  of  the  existence  of  a  condition  of  hostilities, 
or  war  iJi  ftirfn,  does  not  imply  the  recognition  of  a  legal  state  of  war, 
the  parties  to  which  are  to  l)e  treated  as  ])elligerents.''  "A  war  <!*  facto 
then  [is<>4]  unquestionably  existed  between  France  and  St.  Domingo:"' '' 
and  yet  the  United  States  not  only  refused  to  recognize  the  insurgents 
as  belligerents,  but  also  forliade  intercourse  with  them.'' 

"AMy's  K.nt  i  ls7s,,  i(4.  .itinir  Hansard.  CLXII.  \hm. 
'■TlieTiiree  Krien-ls,  1(>6  V.  S.  1. 

•  Marshall.  C.  J.,  Rose  '.  Himley  i  ISOS),  4  (.'ranch,  239,  272. 
''Moore,  Int.  Arbitrations.  V.  447t>-4477. 


§  59.]  KECOGNITION  OF  BELLIGERENCY.  165 

"Belligerency  is  recognized  when  a  political  struggle  has  attained  a 
certain  magnitude  and  affects  the  interests  of  the  recognizing  power; 
and  in  the  instance  of  maritime  operations  recognition  may  l)e  com- 
pelled, or  the  vessels  of  the  insurgents,  if  molesting  third  parties,  may 
bg  pursued  as  pirates." 

The  Three  Friendm  (1897),  166  U.  S.  1,  63. 

"The  recognition  of  belligerency  involves  the  rights  of  l)lockade, 
visitation,  search  and  seizure  of  contraband  articles  on  the  high  seas, 
and  abandonment  of  claims  for  reparation  on  account  of  damages  suf- 
fered by  our  citizens  from  the  prevalence  of  warfare." 

The  Three  Friends  (1897),  166  U.  S.  1,  63. 

Recognition  of  belligerency  ' '  does  not  confer  upon  the  communitj^ 
recognized  all  the  rights  of  an  independent  state,  })ut  it  grants  to  its 
government  and  subjects  the  rights  and  imposes  upon  them  the  ol^li- 
gations  of  an  independent  state  in  all  matters  relating  to  the  war." 

Lawrence,  Principles  of  International  Law,  §  162. 

Whether  a  sovereign,  who  is  endeavoring  to  reduce  his  revolted 
subjects  to  obedience,  assumes  to  exercise  in  a  particular  instance  the 
rights  of  sovereignty  or  the  rights  of  belligerency  must  be  deter- 
mined by  "the  character  of  the  act.  If  as  a  legislator  he  puldishes 
a  law  ordaining  punishments  for  certain  offences,  which  law  is  to  be 
applied  by  the  courts,  the  nature  of  the  law,  and  of  the  proceedings 
under  it,  will  decide  whether  it  is  an  exercise  of  ])elligerent  rights  or 
exclusively  of  his  sovereign  power." 

Marshall,  C.  J.,  Rose  v.  Hiniely  (1808),  4  Cranch,  239,  272. 

"The  occasion  for  the  accordance  of  belligerent  rights  arises  when  a 
civ^il  conflict  exists  within  a  foreign  state.  The  reason  which  requires 
and  can  alone  justify  this  step  by  the  government  of  another  countr}" 
is  that  its  own  rights  and  interests  are  so  far  affected  as  to  require  a 
definition  of  its  owm  relations  to  the  parties.  Where  a  parent  govern- 
ment is  seeking  to  subdue  an  insurrection  by  municipal  force,  and  the 
insurgents  claim  a  political  nationalit}'  and  ])elligerent  rights  which  the 
parent  government  does  not  concede,  a  recognition  ])y  a  foreign  state 
of  full  belligerent  rights,  if  not  justified  by  necessity,  is  a  gratuitous 
demonstration  of  moral  support  to  tlie  rebellion  and  of  censure  upon 
the  parent  government.  But  the  situation  of  a  foreign  state  with  refer- 
ence to  the  contest,  and  the  condition  of  affairs  between  the  contending 
parties,  may  be  such  as  to  justify  this  act.  It  is  important,  therefore, 
to  determine  what  state  of  affairs,  and  what  relations  of  the  foreign 
state,  justify  the  recognition. 


166  i^TATES:    RECOGNITION    AND    rONTTNITITY.  [§  59. 

••  It  is  wn-taiii  that  the  state  of  thinj>-s  between  the  parent  state  and 
insurg-ents  must  amount,  in  fact,  to  a  n'or,  in  the  sense  of  international 
law  tliat  is.  powiu's  and  rij^hts  of  war  nuist  he  in  actual  exercise; 
otherwise  the  recognition  is  falsilied,  for  the  recognition  is  of  a  fact. 
The  tests  to  determine  the  (juestion  are  various,  and  far  more  decisivb 
where  there  is  maritime  wai"  and  conmiercial  relations  with  foreigners. 
Among  the  tests  are  the  existence  of  a  <Ie  facto  political  organization 
of  the  insurgents  sufficient  in  character,  population,  and  resources  to 
constitute  it,  if  left  to  itself,  a  state  among  the  nations,  reasonabh' 
capa})le  of  dis<'harging  the  duties  of  a  stiite;  the  actual  emplo3'ment  of 
military  forces  on  each  side,  acting  in  accordance  with  the  rules  and 
customs  of  war,  such  as  the  use  of  flags  of  truce,  cartels,  exchange  of 
prisoners,  and  the  treatment  of  captured  insurgents  l)y  the  parent  state 
as  prisoners  of  war;  and,  at  sea.  employment  ])v  the  insurgents  of  com- 
missioned cruisers,  and  the  exercise  by  the  parent  government  of  the 
rights  of  blockade  of  insurgent  ports  against  neutral  commerce,  and  of 
stojjping  and  searching  neutral  vessels  at  sea.  If  all  these  elements 
exist,  the  condition  of  things  is  undoubtedly  war;  and  it  may  be  war 
before  they  are  all  ripened  into  activity. 

"As  to  the  relation  of  the  foreign  state  to  the  contest,  if  it  is  solely 
on  land,  and  the  foreign  state  is  not  contiguous,  it  is  difficult  to  imagine 
a  call  for  the  I'ecognition.  If,  for  instance,  the  United  States  should 
formally  rt'cognize  l)elligerent  rights  in  an  insurgent  conununity  at  the 
center  of  Europe,  with  no  seaports,  it  woidd  require  a  hardly  supposable 
necessity  to  make  it  else  than  a  mere  demonstration  of  moral  support. 
But  a  case  may  arise  when^  a  foreign  state  nuist  decide  whether  to  hold 
the  parent  state  responsible  for  acts  done  by  the  insurgents,  or  to  deal 
with  the  insurgents  as  a  <le  facto  government.  (Mr.  Canning  to  Lord 
Granvilh^  on  the  (Ireek  war,  June  22, 182*).)  If  the  foreign  state  recog- 
nizes belligerency  in  the  insurgents,  it  releases  the  parent  state  from 
responsiliility  for  whatcv(n'  may  be  done  by  the  insurgents,  or  not  done 
by  the  parent  state  where  the  insurgent  power  extends.  (Mr.  Adams 
to  Ml'.  Seward,  June  11, 1801,  Dip.  Corr.,  105.)  Ina  contest  wholly  upon 
land  a  contiguous  state  may  be  obliged  to  make  the  decision  whetjier 
or  not  to  i-(»gard  it  as  a  wai*;  but,  in  i)ractice,  this  has  not  been  done  ])y 
a  general  and  prospective  declaration,  but  by  actual  treatment  of  cases 
as  they  arise.  Where  th(»  insurgents  and  the  parent  state  are  maritime, 
and  the  foreign  nation  has  extensixe  conuuercial  relations  and  trade  at 
the  ports  of  both,  and  the  foreign  nation  and  either  or  both  of  the  con- 
tending parties  have  considerable  naval  force,  and  the  domestic  contest 
nmst  extend  itself  over  the  s«'a,  then  the  relations  of  the  foreign  state 
to  this  contest  are  far  ditt'erent. 

"  In  such  a  state  of  things  the  liability  to  political  complications,  and 
the  ((uestions  of  right  and  duty  to  be  decided  at  once,  usually  awa^' 
from  home,  by  ])rivate  citizens  or  naval  officers,  seem  to  require  an 
authoritati\e  and  general  decision  as  to  the  status  of  the  three  parties 


^  59.]  RECOGNITIOTq"    OF    BELLIGERENCY.  167 

involved.  If  tho  contest  is  a  war.  all  foreign  citizens  and  officers, 
whether  executive  or  judicial,  arc  to  follow  one  line  of  <ondu<*t:  if  it 
is  not  a  war,  they  are  to  follow  a  totidly  different  lijie.  If  it  is  a  war 
the  couiinissioned  cruisers  of  both  sides  may  step,  search,  and  capture 
the  foreign  merchant  vessel,  and  that  vessel  nmst  make  no  resistance 
and  must  submit  to  adjudication  by  a  prize  court;  if  it  is  not  a  war, 
the  cruisers  of  neither  party  can  stop  or  search  the  foreign  merchant 
vessel;  and  that  vessel  may  resist  all  attempts  in  that  direction,  and 
theships-of-war  of  the  foreign  state  may  attack  and  capture  any  cruiser 
persisting  in  the  attempt.  If  it  is  war.  foreign  nations  must  await  the 
adjudication  of  prize  tribunals;  if  it  is  not  war,  no  such  tribunal  can 
be  opened.  If  it  is  war,  the  parent  state  may  institute  a  blockade  J ?//V' 
gentiiun  of  the  insurgent  ports,  which  foreigners  must  respect;  but  if 
it  is  not  a  war,  foreign  nations  having  large  commercial  intercourse  with 
the  country  will  not  respect  a  closing  of  insurgent  ports  by  paper 
decrees  onh'.  If  it  is  a  war,  the  insurgent  cruisers  are  to  be  treated  bj' 
foreign  citizens  and  officials,  at  sea  and  in  port,  as  lawful  belligerents; 
if  it  is  not  a  war.  those  cruisers  are  pirates,  and  may  be  treated  as  such. 
If  it  is  a  war,  the  rules  and  risks  respecting  carrying  contraband,  or 
dispatches,  or  military  persons,  come  into  play;  if  it  is  not  war,  they 
do  not.  AYithin  foreign  jurisdiction,  if  it  is  a  war,  acts  of  the  insur- 
gents in  the  way  of  preparation  and  equipments  for  hostility-  may  be 
breaches  of  neutrality  laws;  while,  if  it  is  not  war,  they  do  not  come 
into  that  category,  but  under  the  category  of  pirac}'  or  of  crimes  by 
nuuiicipal  law.  *  *  *  If  it  [the  political  department  of  a  foreign 
government]  issues  a  formal  declaration  of  belligerent  rights  prema- 
turely, or  in  a  contest  with  which  it  has  no  complexity',  it  is  a  gratuitous 
and  unfriendly  act.  If  the  parent  government  complains  of  it,  the 
complaint  must  be  made  upon  one  of  these  grounds.  To  decide  whether 
the  recognition  was  uncalled  for  and  premature  requires  something 
more  than  a  consideration  of  proximate  facts  and  the  overt  and  formal 
acts  of  the  contending  parties.  The  foreign  state  is  bound  and  entitled 
to  consider  the  preceding  history  of  the  parties;  the  magnitude  and 
completeness  of  the  political  and  military  organizations  and  prepara- 
tions on  each  side;  the  probable  extent  of  the  conflict  by  sea  and  land; 
the  probable  extent  and  rapidity  of  its  development:  and,  above  all, 
the  probability  that  its  own  merchant  vessels,  naval  officers,  and  consuls 
may  be  precipitated  into  sudden  and  difficult  complications  abroad. 
The  best  that  can  be  said  is  that  the  foreign  state  nuu'  protect  itself 
i)y  a  seasonable  decision— either  upon  a  test  case  that  arises  or  by  a 
general  prospective  decision — while,  on  the  other  hand,  if  it  makes  the 
recognition  prematurelv,  it  is  liable  to  the  suspicion  of  an  unfriendh" 
purpose  to  the  parent  state.  The  recognition  of  belligerent  rights 
is  not  solely  to  the  advantage  of  the  insurgents.  They  gain  the  great 
advantage  of  a  recognized  status,  and  the  opportunity  to  employ  com- 
missioned cruisers  at  sea,  and  to  exert  all  the  powers  known  to  maritime 


168  states:  recognition  and  continuity.  [§  60. 

waifaio.  with  the  sanction  of  foreign  nations.  They  can  obtain  abroad 
loans,  military  and  naval  materials,  and  enlist  men.  as  against  ever\'- 
thing  but  neutrality  laws:  thei-r  flag  and  commissions  are  acknowledged, 
their  revenue  laws  are  respected,  and  they  acquire  a  quasi-political 
recognition.  On  the  other  hand,  the  parent  government  is  relieved 
from  resjxjnsibility  for  acts  done  in  the  insurgent  territory:  its  Idockade 
of  its  own  ports  is  respected:  and  it  acquires  a  right  to  exert  against 
neutral  conunerce  all  the  powers  of  a  party  to  a  maritime  war." 

Ni.teuf  Mr.  Dana,  Dana's  Wheaton,  §  2S.  p.  34. 

Sir  Alexander  C'oikVmrn,  in  hi.s  opinion  at  (ieneva,  says:  "The  principles  by 
which  a  neutral  state  should  l>e  governed  as  to  the  circumstances  under 
which,  or  the  jterioil  at  which,  to  acknowledge  the  belUgerent  status  of 
insurgents  have  l>een  nowhere  more  fully  and  ably,  or  more  fairly,  stated 
than  by  ^Ir.  Dana,  in  his  edition  of  AVheaton,  in  a  note  to  section  23.'" 

See  Lsiwrence.  Princijiles  of  Int.  Law,  §  168. 

2.   The  A.mekkax  Revolitiox. 

§  60. 

Turning  to  the  precedents,  we  tind.  as  has  been  intimated,  little  of 
definite  value  in  the  earlier  cases.  "'In  the  year  1779."  said  Mr. 
Wheaton.  with  reference  to  the  American  Revolution,  ''the  United 
Stiites  constituted  a  confederation  of  States,  sovereign  (!<-  facto,  and 
engaged  in  war  with  Great  Britain,  in  which  the  rights  of  war  were 
acknowledged  ))v  the  parent  country  itself,  in  the  solemn  exchange 
of  prisoners  ])y  regidar  cartels:  in  the  resj^ect  shown  to  conventions  of 
capitulation  concluded  by  British  generals,  and  in  the  exercise  of  other 
roi/tnierda  ^hJli  usually  practised  and  recognized  between  civilized 
nations."  "  But.  both  before  and  after  1779.  the  course  of  foreign  gov- 
ernments toward  the  United  States  was  varying  and  uncertain.  The  Com- 

"Mr.  Wheaton.  minister  t<j  Prussia,  to  Mr.  Upshur,  Sec.  of  State,  No.  233,  Aug. 
23,  1843,  H.  Ex.  Dch-.  2h4,  28  CVmL'.  1  .'^ess.  6.  Imme<iiately  following  the  pa-*.sage 
al)ove  quoted,  Mr.  Wheaton  says:  "The  United  States  were  associate<l,  in  the  war 
against  <ireat  Pritain.  with  two  of  the  greatest  powers  of  Euro|)e — France  and  Spain — 
both  of  which  ha<l  acknowledged  their  indei>endence,  whils-t  the  former  had  con- 
clude<l  with  them  a  treaty  of  intimate  alliance."  The.se  s'tatements  are  not  altogether 
accurate.  Sjiain  did  not  acknowledge  the  indej;>endence  of  the  Unitetl  States  jx'nd- 
ing  hostilities.  As  late  as  March  30,  1782,  Montmorin,  the  French  amljassatlor  at 
Ma<lrid.  wrote  that  the  Count  de  Florida  Blanca  regarde<l  the  indejiendence  of  the 
Unite*!  States  with  "much  indifference  and  jx^rhaps  fear:"  that  he  had  "never 
wi.-;he<l  to  declare  himself  o]>enly  for  the  Unite<l  States,  and  even  now  he  seems  to 
draw  him.<elf  away  from  them  still  more."'  (Dip.  Cor.  Am.  Rev.,  Wharton,  V.  287- 
289.  i  It  may  al-o  l»e  misleading  to  couple  France  and  Spain  as  jwwers  with  which 
the  Unitefl  States  wa.s  "  a.ssociate<l "  in  the  war  against  Great  Britain.  While  Spain, 
at  the  solicitation  of  France,  gave  the  Unite<l  States  in  an  early  siage  of  the  American 
conflict  some  j>ecuniarv  aid,  she  afterwards  decline<l  to  give  further  assistance  or  to 
form  any  connection  with  the  I'nited  States;  and  when,  in  June,  1779,  she  proceeded 
to  engage  in  ho.^tilities  again.'-t  CJreat  Britain,  she  did  so  for  purposes  of  her  own,  and 
without  anv  i-oncert  or  connection  with  the  United  States. 


§  60.]  RECOGNITION  OF  BELLIGERENCY.  169 

mittee  of  Secret  Correspondence  of  the  Continental  Cono-ress,  writing-  to 
Deane,  October  1,  1776,  in  the  second  year  of  the  American  Revolution, 
said:  "AVe  arc  told  that  our  vigilant  enemies  have  demanded  of  the 
courts  of  France,  Spain,  and  Portug'al  to  deliver  up  the  American  ships 
in  their  ports  and  to  forbid  their  having  any  future  intercourse  with 
them.  The  coui't  of  Portugal  has  complied  so  far  as  to  ordei"  our  ships 
away  on  ten  days"  notice.  That  France  and  Spain  gave  evasive 
answers. "  "  The  extension  of  even  more  than  ordinary  belligerent  privi- 
leges to  American  ships  in  French  ports  was  " '  w'inked  at  ^  ])v  the  govern- 
ment,'^ but  the  fact  that  the  French  government  was  at  the  time  render- 
.  ing-  secret  aid  to  the  United  States,  of  which  it  became  early  in  1778  the 
formal  ally,  detracts  from  the  value  of  its  action  as  a  legal  precedent. 
The  same  thing  may  t)e  said  as  to  the  shifting'  course  of  Spain,  who 
joined  France  in  June.  1771>,  against  Great  Britain.'  Portug-al,  August 
80,  1780,  ordered  the  exclusion  of  the  privateers  and  prizes  of  all  the 
nations  at  war  from  her  ports;"'  but,  l)v  an  edict  published  Jixly  5, 1776, 
the  same  g-overnment  had  ordered  the  exclusion  from  its  ports  of  all 
ships  l)elonging  to  the  people  of  the  United  States  or  coming  from  the 
ports  of  those  States,  and  this  edict  was  not  repealed  till  February  1.5, 
1783.''  The  government  of  Prussia  ordered  merely  that  "the  mer- 
chant vessels  of  America"  should  be  received  on  a  footing  of  friendship 
and  equality  in  the  ports  of  the  kingdom.-^  Denmark,  in  the  autumn 
of  1779,  seized  and  delivered  up,  on  the  demand  of  Great  Britain,  cer- 
tain British  ships  which  were  brought  by  their  American  captors  into 
the  port  of  Bergen;  but  the  Danish  government  afterwards  intimated 
that  it  acted  under  compulsion.'^  In  the  autumn  of  1779,  Paul  Jones 
put  into  the  Texel  in  distress  with  two  British  ships,  which  he  had 
captured  at  sea.  The  British  ambassador  demanded  their  s(Mzure 
and  restitution  and  the  release  of  their  crews.  The  States  General, 
adhering  to  their  ••ancient  maxim  "  not  to  decide  "'"upon  the  legality  or 
illegality  of  prizes  brought  into  their  ports,*'  refused  this  demand,  and 
ordered  the  captor,  who  is  referred  to  as  "a  certain  Paul  Jones,"  as 
soon  as  practica])le  to  put  to  sea.'''  In  December,  1780,  Great  Britain, 
on  various  grounds,  proclaimed  reprisals  against  the  Dutch,  and  a  state 
of  war  between  the  two  countries  soon  followed.' 

"  Dip.  Cor.  Am.  Rev.,  Wharton,  II.  157,  161.  See,  also,  letter  of  Franklin,  Deane, 
and  Lee  t(j  the  Portuguese  ambassador  at  Paris,  April  26,  1777,  id.  .'507. 

''Franklin  and  Deane  to  the  Committee  of  Foreign  Affairs,  May  25,  1777,  Dip.  Cor. 
Am.  Rev.,  Wharton,  II.  322. 

'Dij).  Cor.  Am.  Rev.,  AVharton,  III.  310. 

'/Wharton,  Dip.  Cor.  Am.  Rev.  IV.  83. 

'=  Wharton,  Dip.  Cor.  Am.  Rev.  V.  586;  VI.  294. 

.'■  Wharton,  Dip.  Cor.  Am.  Rev.  III.  347-348. 

0  Wharton,  Dip.  Cor.  Am.  Rev.  II L  385,  433,  435,  528,  534,  540,  5<»7,  678,  67i),  744; 
V.  462;  VI.  717;  Moore,  Int.  Arbitrations,  V.  4572. 

''  Wharton,  Dip.  Cor.  Am.  Rev.  III.  420-421. 

'  Wharton,  Dip.  Cor.  Am.  Rev.  IV.  21!),  510. 


170  states:  recognition  and  continuity.  [§  61. 

3.   Kevoi.itiox  IX  Spanish   Amekica. 
S  61. 

"Your  letter  of  the  '2U  May  litis  been  submitted  to  the  consideration 

of  the  President.     It  does  not  appear  that  such  general 

Instructions  to  Col-  j,jj^l^j.^g^JQ,^j^  .^^^    y^^^^  mention  have    issued  from   this 

lectors  of  Customs,    .  ,  -         i    -•        .      .1  ^  .>  1     i    i 

department,  relative  to  the  entry  01  vessels  l)eionging 

to  the  Provinces  of  Spain;  but  it  is  the  President's 

desire  that  the  intercourse  with  those  provinces  which  are  in  a  state  of 

revolt  should  sti'ictly  conform  to  the  duties  of  the  government  under 

the  law  of  nations,  the  act  of  Congress  and  the  treaties  with  foreign 

powers, 

'■'1.  There  is  no  principle  of  the  law  of  nations,  which  requires  us  to 
exclude  from  our  ports  the  subjects  of  a  foreign  power,  in  a  state  of 
insurrection  against  their  ow^n  government.  It  is  not  incumbent  upon 
us  to  take  notice  of  crimes  &  offences,  which  are  committed  against 
the  municipal  laws  of  another  country,  whether  they  are  classed  in  the 
highest  grade  of  Treason,  or  in  the  lowest  grade  of  misdemeanor — Piracy 
is  an  offence  against  the  law  of  nations  &  every  civilized  government 
undertakes  to  punish  the  pirate  when  brought  within  its  jurisdiction, 
but  an  act  of  revolt  or  rebellion  against  a  Sovereign  must  not  be  con- 
founded with  an  act  of  Piracy,  which  is  denominated  hostility  against 
the  human  race. 

"Any  Merchant  Vessel  therefore  which  has  not  committed  an  offence 
against  the  law  of  nations,  being  freighted  with  a  lawful  cargo  &  con- 
forming in  all  respects  to.  the  laws  of  the  United  States,  is  entitled  to 
an  entry  at  our  Custom  houses  whatever  Flag  she  ma}'  bear — She  is 
also  entitled  to  take  on  board  a  return  Cargo  &  to  depart  from  the 
United  States  with  the  usual  clearance. 

"2.  Hut  while  a  public  war  exists  between  two  foreign  nations,  or 
when  a  civil  wai'  exists  in  any  particular  nation,  the  provisions  of  the 
act  of  the  5  of  June  17i>4  (;^  vol.  S8)  must  be  stricth'  enforced.  Under 
the  cover  of  commercial  intercourse,  no  enlistment  must  be  permitted, 
except  of  the  transi(Mit  citizens  or  subjects  of  a  foreign  nation  enlisting 
on  board  of  the  vessels  l)elonging  to  their  own  country  in  the  manner 
authorized  by  law — No  vessels  must  be  fitted  for  war,  the  force  of 
armed  vessels  must  not  l)e  augmented  &  military  enterprises  must  not 
be  set  on  foot  within  the  territory  &  jurisdiction  of  the  United  States, 
with  the  intent  to  commit  hostilities  against  any  Prince  or  Stati^  with 
whom  the  United  States  are  at  peace — These  prohibitions  howev'er 
do  not  affect  the  right  of  the  American  citizens  to  sell  in  a  course  of 
fair  trade,  any  articles  of  American  product  or  manufacture,  nor  the 
right  of  foreign  merchant  vessels  to  purchase  and  carry  an}^  such 
articles. 

"8.  There  are  two  treaties  in  which  the  subjects  of  Spain  are  inter- 
ested.    First,  the  treaty  of  1795,  between  the  United  States  &  Spain,  and 


§  61.]  RECOGNITION  OF  BELLIGERENCY.  171 

second  the  treaty  of  1S()8  (commonly  called  the  Louisiana  Convention) 
between  the  L'nited  States  &  France — A.s  Spain  has  not  herself  recog- 
nized the  independence  of  any  of  her  colonies.  The  United  States  still 
considers  all  her  subjects  to  be  entitled  to  the  txMietit  of  the  first  treaty. 
The  second  treaty  is  in  the  nature  of  a  compact  with  France  c*c  all 
who  were  entitled  to  its  benelits  at  the  time  of  making-  it  continue  to 
be  entitled  to  them. 

'"The  subjects  of  Spain  trading  directly  from  Spain  or  from  her 
colonies  (whose  independence.  1  repeat,  has  not  been  recognized)  are 
therefore  entitled  as  well  as  the  subjects  of  France,  to  the  ])enetit  of 
the  Tth  Article  of  the  Treaty  for  the  limited  period  of  twelve  years, 
without  regard  to  the  commotions  either  in  Spain  or  in  the  Colonies. 

''The  President  desires  that  you  will  regulate  your  ofhcial  conduct 
upon  the  principles  that  have  been  stated  but  if  anv  extniordinary 
case  occurs,  you  will  report  it  to  this  Department  with  all  possible 
dispatch." 

"P.  S.  Until  otherwise  instructed,  sea  letters  are  not  to  ])e  granted 
to  any  vessels,  }>ut  those  which  are  bound  beyond  the  Cape  of  Good 
Hope." 

Mr.  A.  J.  Dallas,  Sec.  of  the  Treasury,  to  Mr.  Duplej^sis,  collector  at  Xew 
Orleans,  July  3,  1815,  MSS.  Treasury  DepartnieTit. 

September  1.  1815.  President  Madison  issued,  under  the  neutrality 
President's    Procia-  ^i^^'^i  ^i  proclamation  against  the   setting  on  foot  in 
mation,     Septem-  the   United  States  of  military  expeditions  or  enter- 
ber  1.  1815.  prises  against  the  dominions  of  Spain. 

Am.  State  Papers,  For.  Rel.,  IV.  1. 

"This  insurrection  [in  South  America]  began  slowly  and  ])artially  at  Buenos 
Ayres  on  the  l-4th  of  ^lay,  1810,  by  the  formation  of  a  junta  and  the  depo- 
sition of  the  viceroy,  the  government,  however,  being  carried  on  in  the 
name  of  the  King  of  Spain  until  January,  1813,  when  a  provisional  gov- 
ernment was  estal)lished.  On  the  9th  of  July,  1816,  the  provinces  of  the 
Ri(j  de  la  Plata  issued  a  declaration  of  independence,  and  on  the  20th  oi 
April,  1819,  a  constitution  was  pul^lished  by  the  congress. 

"In  1811  the  insurrection  commenced  in  Paraguay,  the  Spanish  governor  was 
deposed,  and  a  government  estaV)lished  under  the  direction  of  Dr.  Francia. 
On  the  12th  of  October,  1813,  a  constitution  was  proclaimed. 

"In  1811  civil  war  commenced  in  Chili,  but  the  declaration  of  independence 
was  not  issued  until  the  12th  of  February,  1818,  and  the  war  continued 
till  1820. 

"The  revolution  in  Peru  commenced  in  1821,  a  declaration  of  indeix'ndence 
l^eing  is.sued  on  the  loth  of  July,  1821,  and  the  war  contimiing  until  1824. 

"On  the  15th  of  September,  1821,  Guatemala  declared  her  independence, 
which,  however,  was  not  finally  established  until  the  1st  of  Jidy,  1823. 

"The  revolution  in  (.'olond)ia  (including  Venezuela,  Ecuador,  and  Xew  Gra- 
nada) connnenced  April  19,  1810,  at  Caracas.  ( )n  theotli  of  July,  1811,  the 
congress  declared  Colombia  an  independent  State,  but  the  war  with  Spain 
continued  until  November,  1823. 


172  states:  recognitiok  and  continuity.  [§  61. 

•■  In  181a  the  President  of  the  United  States  allowed  l>elligerent  rights  to  the 
South  American  States  an<l  proclaimed  a  strict  neutrality.  This  proclama- 
tion was  recognized  by  the  Supreme  Court  an<l  other  tribvuials  of  the 
United  States  as  the  guide  for  their  decisions."  (L<jrd  Russell  to  Mr. 
Adams,  Aug.  30,  1865,  Dip.  Cor.  1865,  I.  536,  540.) 

"The  respective  tlates  which  your  lordship  has  been  kind  enough  to  search 
out  and  record  in  your  note  suHiciently  establish  the  fact  how  carefully 
all  ])recipitation  was  av(jided  [l)y  the  I'nited  States]  in  judging  of  the 
issue  [Ijetween  Spain  and  her  colonies  in  America]  in  regard  to  the  mother 
country."  (Mr.  Adams  to  Lord  Russell,  Sept.  18,  1865,  Dip.  Cor.  1865, 
I.  554,  557.) 

"In  reply  to  your  third  demand — the  exclusion  of  the  flag  of  the 

revolting  province.-^ — I  have  to  observe  that,  in  con.se- 

Note  of  Mr.  Monroe.  ,.  ,  i  . .  i    j     -    x         <•  -    •  i 

T  ,«,«,,,.     (luence  or  the  unsettled  state  of  many  countries,  and 

January  19,  1816.      ^  ,.,'.. 

repeated  changes  of  the  ruling  authority  in  each,  there 
being  at  the  same  time  several  competitors,  and  each  party  bearing  its 
appropriate  flag,  the  President  thought  it  proper,  .some  time  past,  to 
give  orders  to  the  collectors  not  to  make  the  flag  of  any  vessel  a 
criterion  or  condition  of  its  admission  into  the  ports  of  the  United 
States.  Having  taken  no  part  in  the  difl'erences  and  convulsions  which 
have  disturbtxl  tho.se  countries,  it  is  consistent  with  the  just  principles, 
as  it  is  with  the  interests,  of  the  United  States  to  receive  the  ves.sels  of 
all  countries  into  their  ports,  to  whatever  party  belonging,  and  under 
whatever  flag  .sailing,  pirates  excepted,  requiring  of  them  only  the 
payment  of  the  duties,  and  obedience  to  the  laws  while  under  their  juris- 
diction, without  adverting  to  the  question  whether  they  had  committed 
any  violation  of  the  allegiance  or  laws  obligatorv  on  them  in  the 
countries  to  which  they  belonged,  either  in  a.ssuming  such  flag,  or  in 
any  other  respect." 

Mr.  ^Monroe,  Sec.  of  State,  to  the  Chev.  de  Onis,  Spanish  minister,  Jan.  19, 
IS] 6.  Am.  State  Papers,  For.  Rel.,  IV.  424,  426. 

•■  It   is  found   that  existing  laws  have  not  the  eflicacy  nece.ssar}-  to 

prevent  violation.*  of  the  obligations  of  the   United 

President  Madisons  States  as  a  nation  at  peace  toward  bellgierent  parties 

V     o/,o,^  ii'"^!  other  unlawful  acts  on  the  high  seas  by  armed 

bar  2b.  lolfa.  ,  ,      .  .  ^    .      * 

vcsselsequippedwithinthe  waters  of  the  United  States. 

'"With  a  view  to  maintain  more  effectually  the  respect  due  to  the 

laws,  to  the  charactei".  and  to  the  neutral  and  pacific  relations  of  the 

I'nitiHl  States.   1   i-ecominend  to    the    consideration  of   Congress  the 

expediency  of  such  further  legislative  provisions  as  may  be  requisite." 

PresiiU'iit  Madison,  sjKH-ial  mes.«age.  Dec.  26,  1816. 

"It  has  been  JC{)resented — 

"  1.  That  vessels  belonging  to  citizens  of  the  United 

Mr.  Monroe's  Letter.   ^.^    ^  e        '  i  ■  i         i  •  i 

J  10  1817     '^t'^tes.  or  loreigners.  have  been  armed  and  equipped 

in  our  ports,  and  have  cleared  out  from  our  custom- 
houses, as  merchant  vessels;  and,  after  touching  at  other  ports,  have 
hoisted  the  flag  of  some  of  the  belligerents,  and  cruised  under  it  against 
the  commerce  of  nations  in  amitv  with  the  United  States. 


§  61.]  RECOGNITION    OF    BELLIGERENCY.  173 

"2.  That,  in  other  instances,  other  vessels,  armed  and  equipped  in 
our  ports,  have  hoisted  such  flags  after  clearing  out  and  getting 
to  sea.     *     *     * 

"3.  That,  in  other  instances,  foreign  vessels  *  *  *  have  taken 
on  board  citizens  of  the  United  States,  as  passengers,  who,  on  their 
arrival  at  neutral  ports,  have  assumed  the  character  of  officers  and 
soldiers  in  the  service  of  some  of  the  parties  in  the  contest  now  pre- 
vailing in  our  southern  hemisphere." 

Mr.  Monroe,  See.  of  State,  to  Mr.  Forsyth,  fhm.  Foreijjn  RelatioiiH  Conuiiittoe, 
Jan.  10,  1817,  Am.  St.  Pap.  For.  Eel.  IV.  104. 

"  It  was  anticipated  at  an  early  stage  that  the  contest  l^etween  Spain 

and  the  colonies  would  become  highly  interesting  to 

President   Monroe's  ^j^^  United   States.     *     *     *     Through  every  stage 

essage.      ecem-  ^^  ^^^  conflict  the  United  States  has  maintained  an 
ber  2,  1817. 

impartial   neutrality,    giving  aid  to    neither  of   the 

parties   in   men,   money,   ships,   or    munitions   of   war.     They   have 

regarded  the  (;ontest  not  in  the  light  of  an  ordinary  insurrection  or 

rebellion,  but  as  a  civil  war  between  parties  nearly  equal,  having 

as  to  neutral  powers  equal  rights.     Our  ports   have   been  open  to 

both."     *     *     * 

President  ]\Ionroe,  first  annual  message.  Doc.  2,  1817. 

In  liis  annual  message,  Dec.  7,  1819,  President  ■Slonroe  said:  "In  the  eivil 
war  existing  between  Spain  and  the  Spanish  provinces  in  this  hemisphere 
the  greatest  care  has  been  taken  to  enforce  the  laws  intended  to  preserve 
an  impartial  neutrality.  Our  ports  have  continued  to  be  equally  open  to 
both  parties  and  on  the  same  conditions,  and  our  citizens  have  been 
equally  restrained  from  interfering  in  favor  of  either  to  the  prejudice  of 
the  other." 

"In  suppressing  the  establishment  at  Amelia  Island  no  unfriendli- 
ness was  manifested  towards  Spain,  ))ecause  the  post 
Message  on  Amelia  ^^^  taken  from  a  force  which  had  wrested  it  from  her. 

g  '  ■  '  The  measure,  it  is  true,  was  not  adopted  in  concert  with 
the  Spanish  Government,  *  *  *  because  *  *  * 
it  was  thought  proper,  in  doing  justice  to  the  United  States,  to  main- 
tain a  strict  impartiality  towards  both  belligerent  parties,  without  con- 
sulting or  acting  in  concert  with  either.  It  gives  me  pleasure  to  state 
that  the  Governments  of  Buenos  Ayres  and  Venezuela,  whose  names 
were  assumed,  have  explicitly  disclaimed  all  participation  in  those 
measures,  and  even  the  knowledge  of  them.     *     *     * 

"Tiie  civil  war  which  has  so  long  prevailed  between  Spain  and  the 
provinces  in  South  America  still  continues,  without  any  prospect  of  its 
speedy  termination." 

President  Monroe,  message  of  Nov.  17,  1818. 

The  foregoing  extract,  with  other  passages  from  the  same  message,  is  (juoled 
l)y  Wheaton  in  the  4th  volume  of  his  re])()rts,  Aj)pendix  2.!,  mider  the 
head  of  "different  inil)lic  acts  by  which  the  (iovernment  of  the  Tnited 
States  has  recognized  the  existence  of  a  civil  war  between  Spain  and  her 
American  colonies."  The  learned  rejwrter  seems  to  have  overlooked  the 
message  of  Dec.  2,  1817,  which  is  stronger  and  more  explicit  in  its  terms. 


174  states:  recognition  and  continuity.  [§  61. 

"When  ;i  civil  war  rag-es  in  a  foreign  nation,  one  part  of  which 
separates  itself  from  the  old-established  government 

Actionof  the  Courts.         ,  j.     -j.     ^j-  -    j.         j-   j.-      a.  j.    .1  j. 

and  ei'ects  itseli  into  a  distinct  government,  tlie  courts 

of  the  Tnion  must  view  such  newly  constituted  government  as  it  is 
viewed  hv  the  legislative  and  executive  departments  of  the  Govern- 
ment of  the  I'nited  Stiites.  If  the  (lovernment  of  the  Union  remains 
neutral,  but  recognizes  the  existence  of  a  civil  war,  the  courts  of  the 
Union  can  not  consider  as  criminal  those  acts  of  hostility  which  war 
authorizes,  and  which  the  new  government  may  direct  against  its 
enemy."" 

TiHted  States  '•.  ralnuT  (1S18),  o  Wheaton,  (MO,  643. 

Cited  l)y  Wirt,  Attorney-deiieral,  Nov.  (i,  1818,  1  Op.  249. 

See,  also.  Rose  '•.  Iliinely,  4  Crancii,  242;  Gelston  r.  Hoyt,  3  Wheat.  247. 

Mr.  Adams,  Sec.  of  State,  in  a  letter  to  ^Ir.  Justice  Johnson,  Sept.  5,  1820, 
referrinir  to  tlu'  action  of  some  of  the  South  American  governments  in 
issuin<r  privateering  commissions  to  foreigners,  and  in  condoningthe  irregu- 
lanties  of  their  triliunals  in  prize  cases,  ol)serve<l  that  "the  liberality  of 
this  (Government  in  admitting  to  our  ports  armed  vessels  of  the  South 
American  revolutionists"  had  "not  been  well  requited."  (MS.  Dom.  Let. 
XVI II.  132.) 

**'rh(>  diH'isioii  at  the  last  term,  in  the  case  of  the  United  States  r. 
Palmer,  establishes  the  principle  that  the  Government  of  the  United 
Stat<\s.  having  recognized  the  existence  of  a  civil  war  l)etwen  Spain  and 
her  colonies.  ]>ut  remaining  neutral,  the  courts  of  the  Union  are  bound 
to  consider  as  lawful  those  acts  which  war  authorizes,  and  w^iich  the  new 
governments  in  South  America  mav  direct  against  their  enemy.  Unless 
the  neutral  rights  of  the  United  States,  as  ascertained  by  the  law  of 
nations,  the  acts  of  Congres.s,  and  treaties  with  foreign  powers,  are 
violated  l)y  the  cruisers  .sailing  under  commissions  from  those  govern- 
ments, captures  made  by  them  are  to  be  regarded  by  us  as  other  cap- 
tures, ////v  Mli.  are  regarded." 

The  Diviua  Pa.«tora  (1819),  4  Wheat.  52,63. 

See  Nueva  Anna,  6  Wheat.  193;  La  Santis.«ima  Trinidad,  7  Wheat.  337. 

Also,  Luther  r.  Borden,  7  How.  1. 

"As  soon  us  the  [revolutionaryj  movement  assumed  such  a  .stead}- 

and  consistent  form  as  to  make  the  success  of  the  prov- 

President  Monroe'8  j,^^.^,^  probable,  tiie  rights  to  which  thev  were  entitled 

Message.    March   ,         ,       ,  .  .  .     '  ... 

g  jg22  '>y  the  law  ot  nations,  as  equal  parties  to  a  civil  war, 

were  extended  to  them.  Each  party  was  permitted  to 
enter  our  poits  with  its  puldic  and  ])rivate  ships,  and  to  take  from 
them  evei'v  aiticle  which  was  the  subject  of  commerce  with  other 
nations.  Our  citizens  also  have  carried  om  commerce  with  both  par- 
ties, and  the  Government  has  protected  it  with  each  in  articles  not 
contral)and  of  war.     Through  the  whole  of  this  contest  the  United 


§61.]  BECOGNITIOTC    OF    BELLIGERENCY.  175 

States  have  remained  neutral,  and  have  fulfilled  with  the  utmost  impar 
tiality  all  the  obligations  incident  to  that  character."* 

President  Monroe,  si^ecial  message,  March  8,  1822,  recommending  the  adop- 
tion of  measures  with  a  view  to  the  recognition  of  the  independence  of  the 
Spanish  provinces  in  America.      (Am.  State  Papers,  For.  Rel.  IV.  818.) 

President  Woolsey  criticises  the  first  sentence  in  this  passage,  as  follows: 
"This  rule  breaks  down  in  several  places.  The  probability  is  a  creature 
of  the  mind,  something  merely  subjective,  and  ought  not  to  enter  into  a 
definition  of  what  a  nation  ought  to  do.  .\gain,  the  success  does  not 
depend  on  steadiness  and  consistency  of  form  only,  but  on  relative 
strength  of  the  parties.  If  you  make  probaljility  of  success  the  criterion 
of  right  in  the  ca.«e,  you  have  to  weigh  other  circumstances  before  ])eing 
al)le  to  judge  which  is  most  probable,  success  or  defeat.  Would  you,  if 
you  conceded  belligerent  rights,  withdraw  the  concession  whenever  suc- 
cess ceased  to  be  probable?  And,  still  further,  such  provinces  in  revolt 
are  not  entitled  by  the  law  of  nations  to  rights  as  ecjual  parties  to  a  civil 
war.  They  have  properly  no  rights,  and  the  concession  of  belligerency  is 
not  made  on  their  account,  ])ut  on  account  of  considerations  of  jtolicy  on 
the  part  f)f  the  state  itself  which  declares  them  such,  or  on  grounds  of 
humanity."     (Int.  Law,  App.  III.,  note  19.) 

In  the  case  of  the  Thrrf  Fi'ieiifh  (166  U.  S.  63),  government  counsel  specially 
examined  the  course  of  the  United  States  with  reference  to  the  recognition 
of  the  belligerency  of  Latin-American  insurgents  during  the  first  quarter  of 
the  nineteenth  century.  In  the  brief  for  the  government  the  various  con- 
testing bodies  in  1817  were  classified  a«  (1)  the  "leading  Spanish- Ameri- 
can colonies,  whose  position  as  belligerents  was  in  doubt;"  (2)  "certain 
Spanish  or  Portuguese  districts  whose  belligerency  had  not  then  l)een  and 
never  was  recognized;"  (3)  Hayti;  (4)  Amelia  Island  and  (lalveston. 
The  administration  of  President  Madison  came  to  an  end  March  4,  1817; 
and  whether  the  V)elligerency  of  the  South  American  revolutionists  was 
recognized  by  that  Administration  depended,  said  government  counsel,  on 
the  formalities  es.sential  to  such  recognition.  Judge  Benedict  iiad  taken 
the  ground  that  a  public  proclamation  by  the  ICxecutive,  or  some  public 
act  by  necessary  implication  equivalent  to  such  a  proclamation,  was  essen- 
tial. (The  Con.serva,  38  Fed.  Rep.  431,  437.)  Mr.  Clay  had  impliedly 
maintained  the  same  view.  (Annals  of  Congress,  March  18,  1818,  p. 
1415.)  President  Monroe,  in  his  message  of  Dec.  2,  1817,  took  the  con- 
trary view.  As  "Spanish  or  Portuguese  district^,"  whose  l>elligerency 
was  not  recognized,  were  specified  Paraguay  (Am.  State  Papers,  For.  Rel. 
IV.  219,  222,  225,  2-50,  265,  278,  339)  and  the  Oriental  RepubHc  of  Artigas. 
(Am.  State  Papers,  For.  Rel.  IV.  173-4,  218,  219,  221,  225,  250,  268,  274, 
288,  289;  H.  Hx.  Doc.  53,  32  Cong.  1  sess.  193-200;  The  Gran  Para,  7 
Wheat.  471,  509;  Wirt,  At.-Gen.,  1  Op.  249.)  Xor  was  the  belligerency 
of  the  Haytian  chieftains  recognized.  (Wirt,  .Vt.-Oen.,  1  Op.  249;  Aimals 
of  Congress,  March  18,  1818,  p.  1245.)  The  partisans  or  freebooters  at 
Amelia  Island  and  (ialveston  were  treated  as  pirates,  though  their  princi- 
pal leader,  Aury,  claimed  the  right  to  fly  the  Venezuelan,  Artigan,  and 
other  rev(dutionary  flags.  (Wharton,  Int.  Law  Dig.  §  50  a.)  "The 
states,"  said  government  counsel,  "whose  belligerency  was  recognized  by 
Monroe  in  1817  were  doubtless  those  whose  in(lei)endeni-e  was  n-cognized 
in  1822,  namely.  New  Granada  and  Venezuela  *  *  *  ,  Buenos  .\y res, 
*  *  *  and  Chili — the  successful  revolts  of  I'eru  and  Mexico  having  been 
later  than  1817.  That  the  recognition  of  l>elligerency  did  not  apply  to  all 
the  minor  insurgencies  ha.s  been  expressly  ruled  by  this  court  in  TJic  Xueva 
Anna  and  Liebre,  6  Wheat.  193." 


I7r>  sTATEf^:  rpx'oCtNITIon  and  continuity.  [§  62. 

4.   Rkvoiation  in  Tkxas. 

"  It  hiis  iievor  l)ooii  hold  iioctvssarv,  us  a  ])r('liniiiuirv  to  tho  extension 
of  the  rij^hts  of  hospitality  to  either  [of  the  parties  to 
ospi  a  1  y  0        _^  ^.^.|  ^.^„^j.^,j^^^ I    j[j.j(.  {|j^,  (^-hanees  of  the  war  should 
Vessels.  ^ 

be  l)alaneed  and  th(>  proba])ilitv  of  eventual  sueeess 

determined.  For  this  puri)os(>  it  has  t)een  deemed  sufKeient  that  the 
party  had  declared  its  indepiMidence  and  at  the  time  was  actually  main- 
taining it.  Such  having  Ixhmi  the  course  hitherto  pursued  by  this  Gov- 
ernment, however  imi)ortant  it  might  be  to  consider  the  probability 
of  success,  if  a  (juestion  should  arise  as  to  the  r('eog))U!<>t)  ofthe  inde- 
2>('iidene<  <>f  Ir.ra.s,  it  is  not  to  ))e  expected  that  it  should  be  made  a 
prerequisite  to  the  mei'e  exercise  of  hospitality  implied  In'  the  admis- 
sion of  the  vessels  of  that  country  into  our  ports.  The  declaration  of 
neutrality  l)y  the  President  in  regard  to  the  existing  contest  between 
]M(>xico  and  Texas  was  not  intended  to  l)e  confined  to  the  limits  of  that 
province  or  <jf  '  the  theater  of  war."  within  which  it  was  hardly  to  be 
])resumed  that  any  collision  would  occur  or  any  (juestion  on  the  sul)- 
ject  arise,  but  it  was  designed  to  extend  everywhere  and  to  include  as 
well  the  United  States  and  their  ports  as  the  territories  of  the  conflict- 
ing parties.  The  exclusion  of  the  vessels  of  Texas,  while  those  of 
Mexico  are  admitted,  is  not  deemed  compatible  with  the  strict  neu- 
trality which  it  is  the  desire  and  the  determination  of  this  Government 
to  observe  in  ivspivt  to  the  ])resent  contest  between  tho.se  countries; 
nor  is  it  thought  n(>cessary  to  scrutinize  the  character  or  authority  of  the 
flag  under  which  they  may  sail,  or  the  validity  of  the  commission  under 
which  they  may  t)e  commanded,  when  thi^  rights  of  this  country  and 
its  citizens  are  icspected  and  oljserved.  In  this  frank  expression  of 
tlu!  views  and  policy  of  the  Tnited  States  in  regard  to  a  matter  of  .so 
nuich  i?iterest  as  the  war  now  waging  l)etween  Mexico  and  its  revolted 
pro\ince.  it  is  hoped  that  new  evidence  will  be  perceived,  not  only  of 
the  consistency  and  impartiality  of  this  Government  in  its  relations 
with  foreign  countries,  but  of  the  sincere  desire  which  is  entertained, 
l)y  such  an  exposition  of  its  course,  to  cherish  and  perpetuate  that 
friendly  feeling,  which  will  see  in  the  scrupulous  regard  that  is  paid 
to  the  rights  of  othei-.  and  even  of  rival,  parties,  one  of  the  surest 
guarantees  that  its  own  will  contiiuie  to  be  respected.*' 

Mr.  Fon^yth,  .Sec.  of  State,  tn  .Mr.  (ioro.^Jtiza,  Mexican  minister,  Sept.  20,  1886, 
S.  Ex.  Dee.  1,  24  Contr.  2  scss.  SI.  See.  al.«o,  Opinions  of  the  Attorneys- 
General,  III.  120. 

The  note  of  Mr.  Forsyth  was  written  in  reply  to  a  comiilaint  of  Mr.  (iorostiza 
of  the  ai-tion  of  thecolh-etor  of  custoins  at  New  York  in  perniittinjr  a  vessel 
under  the  Texan  Hag  to  enter  that  port.  Mr.  (iorosti/a  also  exjjressecl  the 
hojte  that  the  United  States  would  clo.^e  its  ])orts  against  Texan  vessels, 


§  62. J  RECOGNITION  OF  BELLIGERENCY.  177 

and  wo'ild  not  admit  them  to  the  rights  of  belHgerents  outside  the  terri- 
tory which  was  the  "theater  of  war."  Quoting,  in  f<upport  of  the«>  posi- 
tions, Mr.  Monroe's  statement  that  the  United  States  had  treated  tlie 
South  Americans  as  equal  parties  to  a  civil  war  as  soon  a.i  the  revolutionary 
movement  had  assumed  "such  a  steady  and  consistent  form  as  to  make 
the  success  of  the  provinces  probable,"  Mr.  Gorostiza  oKserved  that  there 
was  "a  great  interval"  between  the  commencement  of  that  mf>vement 
and  the  p^^'riod  at  which  its  success  seemed  to  be  probable;  that  the  United 
States  meanwhile  preserved  a  mere  '^  neutralitif  of  ejpectauci/  ior  thi'  inn- 
pose  of  seeing  whether  those  provinces  did,  or  did  not,  possess  the  means 
of  emancipating  themselves,"  and  that  the  Texan  revolt  had  not  reached 
the  stage  at  which  the  Spanish  Americans  had  arrived  when  belligerent 
rights  were  accorded  them.  (Mr.  Gorostiza  to  Mr.  Forsyth,  Sept.  12, 
1836,  S.  Ex.  Doc.  1,  24  Cong.  2  sess.  74.) 
Replying  to  this,  Mr.  Forsyth,  in  a  passage  immediately  preceding  that  above 
quoted,  says:  "The  course  pursued  by  the  collector  of  Xew  York,  in 
declining  to  exclude  the  vessel  in  question,  which  bore  a  flag  alleged  to  be 
that  of  Texas,  and  the  commander  of  which  exhibited  a  commission  pur- 
porting to  be  from  the  President  of  that  country,  or  to  seize  or  otherwise 
molest  her  after  she  had  entered,  was  in  accordance  with  the  principles 
and  practice  which  have  been  invariaVjly  observed  by  this  Government 
from  the  breaking  out  of  the  revolution  among  the  Spanish  provinces  on 
this  continent  to  the  present  time.  There  is  nothing  contradictory  of  this 
position  in  the  passage  which  Mr.  Gorostiza  has  quoted  from  the  message 
of  3Ir.  Monroe,  then  President  of  the  United  States,  to  Congress  of  the  8th 
of  March,  1822,  when  properly  understood  and  construed  in  connection 
with  the  antecedent  acts  and  declarations  of  the  Executive.  It  is  obvious 
that  the  exclusion  of  the  vessels  of  the  one  party  from  the  ports  of  the  United 
States,  and  the  admission  of  those  of  the  other,  would  be  inconsistent  with 
an  impartial  neutrality;  and  yet  the  President,  in  the  same  message  from 
which  Mr.  Gorostiza  has  quoted,  states  that  'through  the  whole  of  this 
contest  the  United  States  have  remained  neutral,  and  have  fulfilled  with 
the  utmost  impartiality  all  the  obligations  incident  to  that  character.'  In  a 
previous  message,  of  December  7th,  1819,  he  observes:  'In  the  civil  war 
existing  between  Spain  and  the  Spanish  provinces  in  this  hemisphere,  the 
greatest  care  has  been  taken  to  enforce  the  laws  intended  to  preserve  an 
impartial  neutrality.  Our  ports  hare  continued  to  he  equally  open  to  both  parties 
aud  on  the  same  conditions.'  This  language  plainly  refers  to  the  whole  of 
the  contest;  and  the  President  is  not  be  understood,  in  his  subsequent 
message,  to  which  Mr.  Gorostiza  has  referred,  as  intending  to  say  that  the 
vessels  of  either  party  wore  only  permitted  to  enter  the  ports  of  the  United 
States /rom  tlie  period  wiien  the  success  of  such  party  is  probahle.  The  con- 
struction which  Mr.  Gorostiza  has  given  to  the  particular  passage  he  ha.s 
cited  is  not  only  contradicted  by  other  passages  from  the  messages  of  the 
same  executive  officer,  but  still  more  strongly,  if  possible,  by  the  uniform 
acts  of  this  Government  in  that  and  similar  cases.  It  is  a  well-known  fact 
that  the  vessels  of  the  South  American  provinces  were  admitted  iiit<i  the 
ports  of  the  United  States,  under  their  own  or  any  other  flags,  from  the 
commencement  of  the  revolution;  and  it  is  equally  true  that  throughout 
the  various  civil  contests  that  have  taken  place  at  different  periods  among 
the  states  that  si)rung  from  that  revolution  the  vessels  of  each  of  the 
contending  parties  have  been  alike  permitted  to  enter  the  ports  of  this 
country."     (S.  Ex.  Doc.  1,  24  Cong.  2  sess.  81-82.) 

H.  Doc.  551 12 


178  states:  recognition  and  continuity.  [§  63. 

When  this  passage  was  written,  it  is  not  i)rol)able  that  Mr.  Forsyth  had  before 
iiini  the  letter  of  Mr.  Dallas  to  Mr.  Duplessis  of  July  3,  1815,  which  appears 
to  have  Ix'en  the  first  official  order  for  the  extension  of  hospitality  in  i)ort8 
of  the  United  States  to  vessels  tlyinir  South  American  flags.  The  letter 
had  not  l)een  jirinted  in  any  ])ul)lic  document.  It  i.s  possible,  however, 
that  such  vessels  were  in  fact  admitted  by  the  customs  officers  at  some 
l>orts  before  any  order  on  the  subject  was  issued  by  the  Treasury;  and  it 
may  in  any  event  l)e  said  that  the  statement  of  Mr.  Forsyth  to  Mr. 
Gorostiza  is  supported  l)y  jia^sages  in  the  messages  of  President  Monroe 
of  1817  an<l  1822. 

''  It  i.s  now  .several  years  since  tiie  independence  of  Texas,  as  a  sepa- 
rate government,  has  been  acknowledged  by  the  United 
uty  0     aren      j^^^^jj^^.  .^,^(|  ^jjp  ]j^^  since  been  recognized  in  that  char- 
Oovernment.  ■  ,      ^     i  •  i        i  i 

acter  by  several  of  the  most  considerable  powers  of 

Europe.  *  *  *  Xo  effort  for  the  subjugation  of  Texas  has  been 
made  l\v  Mexico  from  the  time  of  the  battle  of  San  Jacinto,  on  the 
21.st  day  of  April,  ISHB,  until  the  commencement  of  the  present  3'ear; 
and  during  all  this  period  Texas  has  maintained  an  independent  gov- 
ernment, carried  on  commerce,  and  made  treaties  with  nations  in  both 
hemispheres,  and  kept  aloof  all  attempts  at  invading  her  territory.  If, 
under  these  circumstances,  any  citizen  of  the  United  States  in  who.se 
behalf  this  Government  has  a  right  on  any  account  or  to  any  extent 
to  interfere,  should,  on  a  charge  of  having  been  found  with  an  armed 
Texan  force  acting  in  hostility  to  Mexico,  be  brought  to  trial  and 
punished  as  for  a  violation  of  the  municipal  laws  of  Mexico,  or  as 
Ijeing  her  subject  engaged  in  rebellion,  after  his  release  has  been 
demanded  by  this  Government,  consequences  of  the  most  serious 
character  would  certainly  ensue." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Thompson,  minister  to  ^lexico,  April  15, 
1842,  Webster's  Works,  VI.  427,  434-4.35,  in  relation  to  citizens  of  the 
United  States  who  were  captured  with  the  Texan  expedition  to  Santa  Fe, 
but  who,  as  was  lielieved,  were  not  in  any  hostile  sen.«e  jiarties  to  that 
expedition. 

5.     BlEXOS    AVKK-S    AM)    Mo.NTEVIDKO,    1844. 

s  6:3. 

May   28,    184.5,  Mr.    Bancroft,   Secretary  of   the   Navy,  preferred 

against  Captain  Philip  F.  Voorhees  a  charge  which. 
Duty  of  Neutral        t  -,     •      f  ,  x-    i-      i     j-  i-        , 

Navies  ^vhiie  in  form  a  charge  of  disobedience  of  orders,  em- 

ln'aced  the  substance  of  complaints  made  by  the  Argen- 
tine Confederation  and  its  ally.  General  Ori})e.  of  a  violation  by  that 
officer  of  their  belligerent  rights.  In  March.  1S44,  Captain  Voorhees 
was  despatched  in  the  frigate.  Cw/r//v.s.s.  I )y  his  commanding  officer, 
Commodore  Daniel  Turner,  to  Montevideo,  with  orders  to  protect  the 
commerce  and  interests  of  the  United  States  in  that  (piarter,  and  in  so 
doing  "to  be  extremely  particular  in  all  his  official  and  private  inter- 
course with  the  Monte videan  and  Buenos  Ayrean  governments,"  and 


§  63.]  RECOGNITION  OB'  BELLIGERENCY.  179 

"  to  bear  always  in  mind  that  it  wa.s  not  only  tlu^  policy  of  our  Gov- 
ernment, but  their  earnest  desire,  to  maintain  a  strit-t  and  unqualified 
neutrality  in  all  thinj^s  relating  to  the  bellioerents  and  to  those  eoun- 
tries  generally."  When  Captain  Voorhees  arrived  off  Montevideo, 
the  port  was  blockaded  b}^  a  squadron  of  the  Argentine  Confederation, 
against  which  Montevideo  had  declared  war,  and  was  besieged  b3dand 
by  General  Oribe,  who  claimed  to  be  the  legal  President  of  the  Oriental 
Republic  of  Uruguay,  and  who  was  endeavoring,'  with  the  aid  of  the 
Government  at  Buenos  Ayres,  to  recover  Montevideo,  whence  he  had 
been  driven  some  months  previously  by  a  revolution.  General  Oribe 
held  possession  of  nearly  all  the  Oriental  Republic  except  Montevideo, 
and  displayed  in  his  camp  the  Montevidean  flag,  which  w^as  also  that 
of  the  Republic,  and  the  flag  of  the  Argentine  Confederation,  as  that 
of  his  ally.  The  Montevideans,  reinforced  by  large  numbers  of  French, 
Italians,  and  other  foreigners,  held  out  against  the  siege  and  the  block- 
ade, and  claimed  to  l)e  the  Government  of  the  Republic.  The  United 
States  had  for  j^ears  maintained  a  charge  d'afl'aires  near  the  Government 
of  the  Argentine  Confederation,  and  had  received  from  it  in  1838,  as 
minister  plenipotentiary  and  extraordinary,  General  Alvear,  who  still 
resided  at  Washington  in  that  capacity.  Diplomatic  relations  with 
Uruguay  had  never  been  established,  but  the  United  States  maintained 
at  Montevideo  a  consul,  who  was  accredited  to  the  Oriental  Republic. 
The  Government  of  the  United  States  had  taken  no  action  upon  the 
war  between  the  Argentine  Confederation  and  Montevideo,  or  upon 
the  civil  contest  in  Uruguay.  The  foreign  naval  forces  in  the  River 
Plate  conceded,  however,  the  claims  of  the  various  parties  to  belligerent 
rights. 

On  the  morning  of  Sunday,  September  29,  IS-l-l,  the  armed  schooner 
S(inc((h(^  which  had  been  fitted  out  by  General  Oribe  to  cruise  against 
the  Montevidean  fishermen  who  supplied  the  besieged  with  fish,  came 
out  of  the  port  of  Buseo,  under  the  Montevidean  flag,  and  chased  an 
enemy  fishing  boat.  The  boat  sought  refuge  alongside  the  American 
bark  liomJha,  which  had,  unknown  to  the  Congi'efn-!^  come  out  of  Mon- 
tevideo on  the  preceding  night,  and  which  was  then  lying,  uni-ecog- 
nized  and  without  any  colors  hoisted,  near  the  frigate.  The  Saneala 
fired  a  volley  of  nuisketry  at  the  boat  and  some  of  the  balls  struck  the 
liostfih(/,  which  then  displayed  her  American  colors.  The  Saneala 
drew  ofl'  and  anchored  under  the  stern  of  the  flagship  of  the  Argentine 
scjuadron.  and,  after  communicating  with  the  commander,  continued 
to  cmiise  after  fishing  ])<)ats.  Several  hours  later,  Captain  Voorhees, 
having  been  advised  of  the  incident,  sent  out  boats  from  the  Congrex.^ 
and  captured  the  iSaneaht.  Her  ofticers  and  crew  Avere  sent  on  board 
the  (oiHjrcKH  as  prisoners,  and  the  Stmn/fa  herself,  under  Cnited  States 
colors  and  witb  a  crew  from  the  Congrrss,  chased  and  captured  a 
schooner  of  the  Argentine  squadron,  called  the  N!ntJi  <>f  'f"l[/^  and  put 
a  prize  crew  on  board  of  her.     The  Congress  then  bore  down  on  the 


180  states:  recognition  and  continuity.  [§  63. 

Arj,n^ntino  squadron,  which  was  lying  at  anchor,  compelled  it  to  strike, 
caused  all  the  ofHcers  to  be  sent  on  board,  released  all  the  Montevidean 
])ris()iieis  on  the  Argentine  vessels,  as  well  as  some  tishing  boats  held 
as  prizes,  and  took  from  one  of  the  vessels  some  seamen,  who  repre- 
sented that  they  were  citizens  of  the  United  States  and  that  their  terms 
of  enlistment  had  expired.  Subsequently  the  officers  were  returned 
to  their  vessels,  and  the  Argentine  commander  renewed  a  protest  which 
he  had  previously  made  against  what  had  been  done.  On  the  8rd  of 
October  he  notified  Captain  Voorhees  of  the  reestablishment  of  the 
l)lockade.  Captain  Voorhees  acknowledged  the  receipt  of  this  notice 
on  the  5th  of  the  same  month,  but  on  the  22nd  informed  the  Argentine 
commander  that  he  would  no  longer  permit  American  vessels  to  be 
visited.  The  blockade  was  therefore  suspended  as  to  such  vessels  till 
the  3rd  of  November,  when  Conunodore  Turner,  who  had  arrived  ofi' 
Montevideo  on  the  2',>th  of  Octol)er,  directed  that  the  Ixdligerent  rights 
of  the  Argentine  Crovernment  l)e  respected.  On  the  21st  of  November 
he  also  ordered  the  release  of  the  Sa/uy/^a,  hei*  officers  and  crew. 

In  the  specitications  l)v  which  the  charge  of  disobedience  was  sup- 
ported, the  Secretary  of  the  Navy  alleged  that  Captain  Voorhees  had 
violated  the  orders  of  Conunodore  Turner  of  March,  1844,  by  the  fol- 
lowing specific  acts: 

1.  By  ••  wrongfully  capturing  and  taking  forcible  possession  of  an 
armed  vessel  called  the  "  Sancala.'  belonging  to  a  Government  at  peace 
with  the  Government  of  the  United  States  and  at  war  with  the  Gov- 
ernment of  Montevideo." 

2.  By  "'wrongfully  ca})turing  and  taking  forcible  possession  of  a 
squadron  of  armed  vessels  belonging  to  a  Government  at  peace  with 
the  Government  of  the  United  States  and  at  war  with  the  Government 
of  Montevideo." 

3.  By  "forcibly  and  wrongfully  releasing  prisoners  and  other  prop- 
erty captured  by.  or  in  custody  of.  a  s(]uadron  of  vessels  employed  in 
blockading  the  port  of  Montevideo,  the  said  s(|uadron  belonging  to  a 
Government  at  peace  with  the  Government  of  the  Ignited  States." 

4.  By  "wrongfully  and  forcibly  taking  seamen  from  a  s(piadron  of 
vessels  blockading  the  j)()rt  of  Montevideo,  the  said  sijuadron  l)elong- 
ing  to  a  (lovernment  at  ])eace  with  the  Government  of  the  United 
States." 

5.  By  "refusing  to  permit  a  sciuadi-on  of  vessels  employed  in  block- 
ading Montevideo  to  enforce  the  blockade  with  respect  to  merchant 
vessels ))elonging  to  the  I'nited  States,  the  said  squadron  belonging  to 
a  Government  at  peace  with  the  Government  of  the  Ignited  States." 

The  judge-advocate,  in  his  opening  statement,  dist-ussed  the  ques- 
tions whether  the  Sancuhi  was  sailing  under  a  false  tlag.  with  no 
authority  to  exercise  belligerent  rights,  and  whether  her  attack  on  the 
Romlha  was  a  piratical  act,  which  outlawed  her.     He  maintained  the 


§  63.]  RECOGNITION  OF  BELLIGERENCY.  181 

negative  of  l)oth  questions.^'  He  referred  to  the  case  of  Capt.  Daniel 
Turner,  who.  April  7.  1830,  eut  out  the  Buenos  A3reaji  privateer  from 
a  neutral  harbor  in  St.  Bartholomew,  on  representations  of  her  having 
plundered  an  American  vessel  and  the  refusal  of  the  neutral  power  to 
give  her  up;  and  to  the*  case  of  Commodore  David  Porter,  who,  June 
3,  1825,  attacked  a  town  in  Porto  Rico,  landing  and  compelling  the 
submission  of  the  local  authorities  for  having  imprisoned  Lieut(Miant 
Piatt,  whom  he  had,  while  in  search  of  pirates,  dispatched  thithei-  in 
search  of  supposed  stolen  goods.  In  both  these  cases,  said  the  judge- 
advocate,  ''the  invasion  of  national  rights  met  with  condenmation  and 
rebuke  from  the  Government  of  the  United  States.'' 

Captain  Voorhees,  in  his  defense,  stated  that  in  capturing  the  ASan- 
cala  he  acted  upon  a  communication  brouglit  to  him  by  a  midshipman, 
from  the  owner  of  the  Bosalha^  to  the  effect  that  a  Buenos  Ayrean 
schooner,  sailing  under  Montevidean  colors,  had  pursued  and  captured 
several  Montevidean  fishermen  and  had  fired  a  volley  of  nuisketr}'  into 
the  bark.  This,  as  reported,  he  considered  an  act  of  piracy,  in  which 
the  connnander  of  the  Argentine  squadron  had,  by  approving  and 
adopting  it,  made  himself  an  accomplice.  He  also  relied  much  on  the 
case  of  the  Marianna  Flora  J'  He  referred  to  the  Sancala  as  a  "daring 
marauder,"  and  cited  Klintock's  case''  to  show  that  Oribe,  not  having 
been  recognized  as  a  belligerent  by  the  United  States,  was  not  entitled 
to  belligerent  rights.  He  also  said:  "I  received  the  highest  testi- 
monials of  the  approbation  of  my  proceedings  from  the  highest  com- 
manding officers  in  the  English,  French,  and  Brazilian  squadrons. 
High  commendation  was  bestowed  upon  me  by  the  agent  of  nu'  Gov- 
ernment at  Montevideo  and  >)y  the  American  minister  at  Rio  de 
Janeiro,  and  finally  it  was  in  the  fullest  and  most  distinct  manner 
sanctioned  and  approved  ])v  my  commanding  officer,  Connnodore 
Turner,  whose  orders  I  am  now  charged  with  violating." 

The  court-martial  found  the  accused  guilty  on  each  of  the  five  speci- 
fications, and  sentenced  him  to  be  reprimanded  in  a  general  order  l)v 
the  Secretary  of  the  Navy  and  to  ])e  suspended  for  three  years.''  The 
verdict  was  approved  and  the  sentence  confirmed.  The  Secretary  of 
the  Nav3%  in  carrying  the  sentence  into  effect,  said:  "1  could  desire 
not  to  add  one  word  to  the  judgment  of  the  court.  *  *  *  But  jus- 
tice to  our  own  Government,  the  relations  of  amity  subsisting  with  the 
Argentine  Republic,  our  avowed  policy  of  neutrality  between  foreign 
belligerents,  respect  for  the  rights  of  a  foreign  flag,  a  firm  adhesion 
to  the  humane  principles  of  the  modern  code  of  maritime  law,  ever 

«  The  judge-advocate  cited  various  writers  on  international  law,  and  the  case  of  the 
Iniincible,  opinion  of  Attorney-General  Butler,  May  17,  1880,  ;{  Op.  120. 
^11  Wheaton,  1. 

e  United  States  v.  Klintock,  5  "Wheaton,  144. 
</  MSS.  Navy  Department. 


182  states:  kecoqnition  and  continuity.  [§  64- 

advocated  and  insisted  upon  l\v  the  American  ])eople,  the  determina- 
tion to  demand  nothing''  l)ut  what  is  rig-ht,  especially  from  a  weaker 
power  than  our  own,  compel  me  to  disavow  and  reprove  your  conduct 
as  set  forth  in  the  charf^e  and  specifications  of  which  you  have  been 
found  o-uilty.'"  "  A  transcript  of  this  letter  and  of  the  tinding  and  sen- 
tence of  the  court-martial  were  communicated  to  the  Argentine  min- 
ister, with  an  expression  of  the  hope  that  his  Government  Avould  see 
in  it  a  satisfactory  proof  of  the  disposition  of  the  United  Stjites  "to 
respect  the  rights  of  Buenos  Ay  res."'' 

(5.   rEur — The  Vivanto   Insi-rkection. 

>?  (U. 

"I  shall  not  undertake  to  settle  any  general  principle  by  which  the 
true  character  of  an  insurrectionary  movement  in  a 
Nonaction  of  Foreign  ^-ountry  mav  be  tested,  and  under  what  circumstances 
Governments;.,,        "  '  1.1.1:  1  £  x 

„.  ^        ^  ,v    .      it  becomes  a  contest  for  a  change  of  government. 
Rights  and  Duties  ,  .  ^  ^  ,       ,         . 

of  their  Citizens.     K'vuig  to  it   the  attributes,  together  with  the  tirst 

conseijuences,  of  a  civil  war..  It  is  sufhcient  to  say 
that  the  situation  of  the  contending  parties  in  Peru.'  and  the  avowed 
objects  of  the  revolutionary  leaders,  together  with  the  extent  of  their 
operations,  and  also  the  extent  and  importance  of  the  portion  of  the 
Republic  which  they  occupied  and  governed  at  diti'erent  periods  of 
the  struggle,  made  that  contest  a  civil  war.  *  *  *  You  consider 
some  act  of  a  foreign  government  recognizing  the  existence  of  such  a 
war  to  be  neces.sary  before  its  citizens  can  claim  the  protection  which 
the  Ignited  States  demand  for  their  own.  *  *  *  Cases  have  been 
put,  and  may  be  put  again,  which,  in  the  opinion  of  high  authorities, 
require  such  a  measure  l)efore  they  carry  with  them  the  consequences 
athiched  to  the  condition  of  civil  war.  Such  cases  may  relate  to  the 
declaration  of  a  ))lockade,  to  a  claim  to  search  vessels  as  neutrals,  and 
to  the  exercise  of  other  ])elligerent  powers  assumed  by  the  hostile 
rulers.  By  what  pu])lic  act,  whether  proclamation  or  otherwise,  this 
recognition  nuist  take  place  I  have  not  found  laid  down.  T  am  not 
aware  that  in  this  country  any  solemn  proceeding,  either  legislative  oi' 
executive,  has  been  adopted  for  the  purpose  of  declaring  the  status  of 
an  insurrectionary  movement  abroad,  and  whether  it  is  entitled  to  the 
attributes  of  civil  war,  unless,  indeed,  in  the  formal  recognition  of  a 
portion  of  an  empire^  seeking  to  establish  its  independence,  which,  in 
fact,  does  not  so  much  admit  its  existence  as  it  announces  its  result,  at 


«Mr.  Bancroft,  Sec.  of  the  Navy,  to  Capt.  Voorlices,  Aujr.  12,  1845,  M8S.  Navy 
Dei)t. 

''^Ir.  Buchanan,  Sec.  of  State,  to  (ieu.  Alvear,  Oct.  2o.  ls4r),  MS.  Note.s  to  Argen- 
tine Confederation,  VI.  17. 

'During  the  Vivanco  iiiHurrection.     See  Moore,  Int.  Arliitrationn,  1 1.  1.5915  et  seq. 


§  64.]  KECOGNITION  OF  BELLIGERENCY.  183 

least  so  far  as  rej^arcls  the  nation  thus  proclaiming  its  decision.  But 
that  is  the  case  of  the  admission  of  a  new  member  into  the  family  of 
nations.  Such  is  not  the  condition  of  Peru.  She  had  already  attained 
that  position,  and  her  inte.'^tine  difficulties  arose  out  of  an  eti'ort  to 
change  the  administi-ation  of  the  government,  which  was  a  matter  of 
purely  domestic  concern,  not  touching  foreign  powers,  unless  in  the 
progress  of  the  contest  their  interests  were  brought  into  question.  So 
long,  therefore,  as  such  a  contest  preserves  its  domestic  character  there 
is  no  necessity  for  external  interposition  unless,  indeed,  there  be  a 
determination  to  take  part  with  and  aid  one  of  the  parties  b}'  the 
direct  application  of  force  or  by  the  exertion  of  political  influence. 
Such  has  not  been  the  policy  of  the  United  States,  and  the}'  carefully 
abstained  from  all  interference  with  the  troubles  in  Peru,  content  to 
abide  the  decision  which  its  people  might  make;  and  this  Government 
permitted  the  diplomatic  intercourse  of  the  two  countries  to  continue 
unchanged,  as  a  measure  demanded  by  their  nmtual  interests  and  not 
as  an  acknowledgment  of  the  pretensions  of  either  of  the  rival  parties. 
It  is,  therefore,  unnecessary  to  advert  to  the  effect  of  a  formal  recog- 
nition by  the  Executive,  and  how  far  that  act  of  political  power  would 
be  obligatory  upon  the  courts  of  justice  and  binding  upon  the  rights 
of  individuals.  Whether  a  civil  war  was  prevailing  in  Peru  is  a  ques- 
tion of  fact,  to  be  judged  b}-  the  proofs,  as  the  existence  of  a  war 
between  two  independent  nations  is  a  similar  question,  to  be  determined 
in  the  same  manner,  whereas,  as  is  often  the  case,  at  least  in  this 
countr}',  there  is  no  public  authoritative  recognition  of  it." 

Mr.  Caas,  ^c.  of  State,  to  Mr.  Osma,  Peruvian  minister,  "May  22,  18.58,  S.  Ex. 

Doc.  69,  3.5  Cong.  1  sesH.  17,  20,  24-25. 
See  opinion  of  Attorney-General  Black,  18.58,  9  Op.  140. 

"Mr.  Osma  insists,  however,  that  a  civil  war  in  one  country  can 
not  be  known  to  the  people  of  another  })ut  through  their  own  govern- 
ment; that  the  existence  or  nonexistence  of  civil  war  is  a  que.stion  not 
of  fact,  but  of  law,  which  no  private  person  has  a  right  to  decide  for 
himself;  that  foreigners  must  regard  the  former  state  of  things  as  still 
existing,  unless  their  respective  governments  have  recognized  the 
change.  But  1  am  very  clearly  of  the  opinion  that  an  American  citi- 
zen who  goes  to  southern  Peru  may  safely  act  upon  the  evidence  of 
his  own  senses.  If  he  .sees  that  the  former  government  has  been 
expelled  or  overturned  b}'  a  civil  revolution,  and  a  new  one  set  up  and 
maintained  in  its  place,  he  can  not  be  molested  or  even  blamed  for 
regulating  his  behavior  by  the  laws  thus  established.  Nay,  he  has  no 
choice;  the  government  de  facto  will  compel  his  obedience.  It  will 
not  give  him  leave  to  ignore  the  matter  of  fact  while  he  waits  for  the 
.solution  of  a  legal  problem  at  home.  Besides,  if  he  resists  the  author- 
ity of  the  party  in  possession  on  the  ground  that  another  has  the  right 


184  s;tates:  recognition  and  continuity.      [§§65-66. 

of  possession,  ho  departs  from  his  neutrality,  and  so  violates  the  duty 
he  owes  to  both  the  belligerents  as  well  as  to  the  laws  of  his  own 
country." 

Mr.  Cassi,  Sec.  of  State,  to  Mr.  Clay,  minister  to  Pern.  Nov.  26,  18.58,  MS.  Inst. 

Pern,  XV.  243. 
See,  also,  Br.  &  For.  State  Papers  (18.59-1860),  L.   1126;  id.  (1860,  1861),  LI. 

7.   Mkxk'o. 

S65. 

''I  have  the  honor  to  inform  you  that  both  Mr.  McLane,  our  minis- 
ter to  Mexico,  and  Mr.  Mata,  the  Mexican  minister  here, 
Miramon    Govern-  j^.^^.^  stated  to  this  Department  that  there  is  reason  to 

ment;  Question  of  x    ^•         xi^  i.  i-i  Ui-i 

„,    ,    ^  believe  that  arrano-ements  are  makingf  bv  what  IS  known 

Blockade.  "  °     • 

as  the  Miramon  government  of  Mexico  to  establish  a 

blockade  of  Vera  Cruz  and  other  ports  upon  the  Gulf  of  Mexico.    The 

President  has  decided  that  no  such  blockade  will  be  recognized  b}-  the 

United  States,  and  1  have  to  request  that  the  necessary  orders  for  the 

protection  of  American  commerce  in  the  Gulf  against  any  such  attempt 

may  be  given  to  the  proper  naval  officers."" 

Mr.  Ca.<:s,  Sec.  of  State,  to  Mr.  Toucey,  Sec.  of  tlie  Navy,  March  10,  1860,  52 
MS.  Doni.  Let.  .37. 

"This  Goveriunent  has  long  recognized,  and  still  does  continue  to 

recognize,  the  constitutional  government  of  the  United 

Governments  of  j^^.^^^^  of  Mexico  as  the  .sovereign  authoritv  in  that 

Juarez  and  Max-  i     i      t^       •  i  t^      •        t  '•         i  •    p 

^.j.^jj  country,  and  the  r resident,  Benito  Juarez,  as  its  chief. 

This  (lovernment,  at  the  same  time,  equally  recognizes 
the  condition  of  war  existing  in  Mexico  between  that  country  and 
France.  \\  g  maintain  absolute  neutrality  between  the  belligerents, 
and  we  do  not  a.ssimie  to  judge,  nuich  less  to  judge  in  advance,  of  the 
ettect  of  the  war  upon  titles  or  estates." 

Mr.  Seward,  l^ec.  of  State,  to  Mr.  ( Jeofroy,  French  minister,  April  6,  1864,  Dip. 
Cor.  18t>4,  in.  212. 

8.  The  Co.vkedekate  St.\te.s. 

S  66. 

Mr.  Seward,  in   his  instructions  to  Mr.  Adams,  of  May  21,  1861, 
Action   of  Various  stated   that  "'ii  concession  of  belligerent  rights"  by 
Powers;  Position  Great  Britain  to  the  Confederate  States  would  "' be  lia- 
of  Mr.  Seward.     l)le  to  be  construed"  as  a  recognition  of  their  inde- 
pendence, and  would  not  '"pass  uncjuestioned  by  the  United  States."" 
Sub.sequently,  havnig  heard  of  the  Queen's  proclamation  of  neutralit}' 


"  Dip.  Cor.  1861,  89.  A  facsimile  of  Mr.  Seward's  draft  of  these  instructions,  with 
President  Lincoln's  interlineations  and  corrections,  is  given  in  an  article  entitled  "A 
famous  diplomatic  dispatch,"  in  the  North  American  Review,  April,  1886. 


S  t)6.J  RECOGNITION  OF  BELLIGERENCY.  185 

of  tho  13th  of  ^lay,  Mr.  Seward  observed  that  its  issuance  was 
"remarkable" — first,  because  it  was  made  on  the  very  day  of  Mr. 
Adams'  arrival  in  London,  without  according-  him  the  reception  and 
interview  for  which  his  predecessor  had  arranged,  and.  secondh', 
because  of  "the  tenor  of  the  prochimation  itself,  which  seems  to  rec- 
ognize, in  a  vague  manner,  indeed,  but  does  seem  to  recognize,  the 
insurgents  as  a  Ihlligrrent  n^i\o\vA\  jxnni-r.^" "^  In  an  insti'uction  to  Mr. 
Uayton,  minister  to  France,  of  May  30,  1861,  ]Mr.  Seward  said:  "The 
United  States  can  not  for  a  moment  allow  the  French  (xoverimient  to 
rest  under  the  delusive  belief  that  they  will  be  content  to  have  the 
Confederate  States  recognized  as  a  Ijelligerent  power  by  states  with 
which  this  nation  is  in  amity. "^  The  French  declai"ation  of  neutrality 
was  issued  June  10.  1861,  that  of  Spain  June  IT.  and  that  of  the  Neth- 
erlands in  the  same  month.  The  Emperor  of  Brazil  issued  a  similar 
declaration  August  1,  1861.  Declarations,  decrees,  or  notifications 
were  issued  by  other  maritime  powers.'"  In  a  conversation  with  Earl 
Russell.  June  12,  18(51,  Mr.  Adams,  referring  to  the  British  recogni- 
tion of  Confederate  belligerency,  observed  that,  "at  any  rate,  there 
was  one  compensation,  the  act  had  released  the  Government  of  the 
United  States  from  responsibility  for  any  misdeeds  of  the  rebels 
towards  Great  Britain.  If  any  of  their  people  should  capture  or 
maltreat  a  British  vessel  on  the  ocean,  the  reclamation  must  be  made- 
only  upon  those  who  had  authorized  the  wrong.  The  United  States 
would  not  be  liable."''  In  April,  1862,  Mr.  Adams  and  Mr.  Dayton 
were  respectively  authorized,  in  their  discretion,  to  submit  to  the 
British  and  French  Governments  certain  representations  looking  to 
the  revocation  or  "revision"  of  their  recognition  of  Confederate 
belligerency. "^ 

•'This  Government  insists  now  in  these  cases,  as  it  insisted  in  the 
beginning  of  our  domestic  strife,  that  the  decisions  of  the  Emperor's 


«  Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  minister  to  England,  Jnne  .S,  IStil,  Dii). 
Cor.  1861,  97. 

'^Dip.  Cor.  1861,  215.  See  also  Mr.  Seward  to  Mr.  Dayton,  June  17.  .Junt-  22.  and 
July  6,  1861,  id.  224,  229,  231-234. 

*-'  Moore,  Int.  Arbitrations,  I.  595. 

''Mr.  Adams,  minister  to  England,  to  Mr.  Seward,  Sec.  of  State,  Dip.  Cor.  1861, 
87,  89;  Lawrence's  Wheaton  (1863),  44.  "It  is  easy  to  see  what  they  [the  I'nited 
States]  gained  [by  the  acknowletlgment  of  Confederate  belligerency].  They 
gained  the  liberty  to  exercise  against  British  ships  on  the  high  seas  the  rights  of 
visit  and  search,  of  capturing  contraband,  and  of  blockade — rights  which  spring 
solely  from  the  relation  of  l>elligerent  and  neutral,  and  which  the  neutral  acknowl- 
edges by  recognizing  the  existence  of  that  relation.  The  advantages  reajwd  in  mari- 
time war  from  the  exercise  of  such  rights  fall,  where  there  is  a  disparity  of  force, 
into  the  hands  of  the  stronger  belligerent;  where  tlie  disparity  is  great  he  has  a 
monopoly  of  them,  for  he  is  able  to  shut  up  his  enemy  in  port  and  drive  liim  from 
the  sea."     (Bernard's  Neutrality  of  Gr.  Brit.  167.) 

*Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  mini.ster  to  England,  Aj)ril  16,  1862, 
Dip.  Cor.  1862,  73;  Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  minister  to  France, 
April  17,  1862,  Dip.  Cor.  1862,  333. 


186  states:  recognition  and  continuity.  [§  66. 

(TOvoriuiKMit,  like  those  of  other  maritime  power.s,  by  which  the  insur- 
gents of  this  country,  without  a  port  or  a  ship  or  a  court  of  admimlty, 
are  recognized  by  France  as  a  naval  luMligeient.  are  in  dei'ogation  of 
the  law  of  nations  and  injurious  to  the  dignity  and  sovereignty  of  the 
United  States;  that  they  have  never  approved  or  acquiesced  in  those 
decrees,  and  that  they  regard  these  late  proceedings  in  relation  to  the 
Florida  and  (Jeorgia.  like  those  of  a  similar  character  which  have 
occurred  in  previous  cases,  as  just  subjects  of  complaint.  The  same 
views  are  entertained  so  far  as  they  apply  to  the  new  maritime  regu- 
lations. We  claim  that  we  are  entitled  to  have  our  national  vessels 
received  in  French  ports  with  the  same  courtesy  that  we  ourselves 
extend  to  French  ships  of  war.  and  that  all  real  or  pretended  insur- 
gent vessels  ought  to  be  altogether  excluded  from  French  port?.  We 
expect  the  time  to  come,  and  we  believe  it  is  not  distant,  when  this 
claim  will  be  acknowledged  by  France  to  ))e  both  reasonable  and 
just." 

Mr.  ."^eward,  Sec.  of  State,  to  Mr.  Dayton,  inini.ster  to  France,  March  21,  1864, 
Dip.  C(.r.  1S(>4,  III.  .'i.i. 

'■  It  give.s  nie  great  pleasure  to  acknowledge  that,  beyond  what  we  deem  the 
original  error  of  France  in  recognizing,  unneces-sarily,  as  we  think,  the 
insurgent.*  a.s  a  l>elligerent,  we  have  every  rea.>on  to  appreciate  the  ju8t 
and  impartial  observance  oi  neutrality  which  ha.s  been  practice<l  in  the 
}X)rt.<  and  liarlj<irs«  of  France  Viy  the  (Tovernment  of  the  Emperor.  In  any 
case  it  will  l>e  hereafter,  a.s  it  ha«  l>een  hitherto,  a  pleasing  duty  to  con- 
duct all  our  belligerent  proceedings^  so  sl"  to  inflict  no  wrong  or  injury 
upon  the  (iovernment  or  the  i>eople  of  the  French  Empire."  (Mr.  Sew- 
ard, Sec.  of  State,  to  Mr.  Dayton,  minister  to  France,  April  24,  1863, 
Dip.  Cor.  1863,  I.  tJ62. ) 

"  The  stea«lfa.«t  iletermination  of  the  (Tovernment  neither  to  say  nor  do  any- 
thing which  could  reaj^onably  be  construed  into  an  interference  was 
tested  in  Nuveml>er,  1862,  when  it  wa<  projxjsed  by  the  Emjieror  of  the 
French  that  the  Courts  of  France,  Ru.^sia,  and  Great  Britain  should  ten- 
der their  go<id  offices  t<j  ))oth  l)elligerents,  in  the  hoix"  of  preparing  the 
way  for  an  accommodation.  ^I.  Drouyn  de  I'Huys,  in  a<ldre.s.sing  himself 
to  the  British  Government,  dwelt  on  the  'innumerable  calamities  and 
innnense  l>loodshe<r  which  attended  the  war,  and  on  the  evils  which  it 
inflicted  upon  Europe.  The  two  conten<Ung  parties,  he  said,  had  up  to 
that  time  fought  with  l)alanced  succe.ss,  and  there  appeared  to  l>e  no  prob- 
ability that  the  strife  would  so(jn  terminate.  He  proposed,  therefore, 
that  the  three  courts  should  join  in  recommending  an  annistice  for  six 
months,  during  which  means  might  be  di.scovere<l  for  effecting  a  lasting 
paciflcation.  The  British  (Government  declined  to  take  part  in  such  a 
recommendation,  Ix'ing  satisfled  that  there  wa<  no  reasonal>le  prospect  of 
its  being  entertaine<l  by  that  of  the  United  States.  'Dejiend  upon  it,  my 
lonls.'  .said  Earl  Kus.<ell,  addressing  the  Ilou.^e  of  Peers  in  1863,  'that,  if 
this  war  is  to  cea«e,  it  is  far  Ix-tter  tliat  it  should  cease  by  a  conviction 
Ijoth  on  the  part  of  the  North  and  on  that  of  the  South  that  they  can 
never  live  together  again  happily  as  one  community  and  a^  one  Republic, 
and  that  the  termination  of  hostilities  can  never  l>e  brought  alx)ut  by  the 
advice,  the  mediation,  or  the  interference  of  any  European  power.'  " 
(Bernard's  Neutrality  of  Gr.  Br.,  467.) 


S  ^Q'\  RECOGNITION  OF  BELLIGERENCY.  187 

See,  further,  a.s  to  the  recognition  of  Confederate  l)elligerenoy,  S.  Ex.  Doc.  11, 
41  Cong.  1  sess.;  Phillimore,  Int.  I^w,  II.  (8d  ed. )  25;  sj)eech  of  Sir  (i.  C. 
Lewi^,  Oct.  17,  1862,  cited  hy  Lawrence,  Com.  8ur  droit  int.,  I.  2(K);  (iuld- 
win  Smith,  Macmillan's  Mag.  XIII.  1H8,  C.  F.  Adams,  Lee  at  Appomattox 
and  other  i)apers,  98-101,  199-208. 

June   '2,  lH(u).  Earl   Russell    instructod    Sir    Frodin-ick    Bruce,  the 

British  minister  at  Washing-ton.  to  inform   the  (iov- 

Withdrawal   of    ernment    of   the    United    States    that    Her   Majesty's 
recognition.  ...  i        . 

(iovernment,  havino-  received  copies  of  the  President's 

proclamation  of  May  10  declarino-  that  armed  resistance  to  the  United 
States  was  virtually  at  an  end,  and  having  heard  of  the  surrender  or 
dispersal  of  most  of  the  Confederate  armies  and  the  caj)ture  of  Mr. 
Jefferson  Davis,  had.  after  comnumication  with  the  French  (jovern- 
ment.  determined,  although  it  would  have  been  more  satisfactory  if 
the  United  States  had  also  declared  that  it  renounced  the  exercise,  as 
regarded  neutrals,  of  the  rights  of  a  belligerent,  to  consider  the  war 
to  ha\'e  ceased  de  fado  and  peace  to  have  ])een  reestablished  through- 
out the  territoiy  of  the  United  States;  and  that  Her  Majesty's  (rov- 
ernment  would  immediately  direct  that  admission  to  British  waters  be 
refused  to  Confederate  vessels  of  war,  while  an}-  stich  vessels  alread}' 
in  those  waters  shoidd,  unless  divested  of  their  warlike  character,  be 
required  to  depart,  with  the  benefit,  for  the  last  time,  of  the  prohibi- 
tion against  their  being  pursued  within  twenty-four  hours  by  a  cruiser 
of  the  United  States  lying  at  the  moment  within  the  same  port.*^*  Mr. 
Seward  protested  against  this  reservation,^  and,  in  communicating  the 
correspondence  to  the  Secretary  of  the  Navy,  advised  that  the  naval 
officers  of  the  United  States  be  acquainted  with  '*  the  results  follow- 
ing therefrouL  namely:  First,  Great  Britain  withdraws  her  cession 
heretofore  made  of  a  belligerent  character  from  the  insurgents;  sec- 
ondly, that  the  withdrawal  of  the  twenty-four  hours'  ride  has  not  been 
made  absolute  by  (Ireat  Bi'itain,  and  that  therefore  the  customary 
courtesies  are  not  to  be  paid  by  our  vessels  to  those  of  the  British 
navy;  thirdly,  the  right  of  search  of  British  vessels  is  terminated 
(of  course  this  has  no  bearing  upon  the  operation  of  the  existing 
slave-trade  treaty);  fourthly,  any  insurgent  or  piratical  vessels 
found  on  the  high  seas  may  be  lawfulh^  captured  by  vessels  of  the 
United  States."''  Mr.  Welles,  June  iJ2,  1865,  issued  insti'uctions  to 
the  Navy  to  the  effect  that  France  had  •"  withdrawn  from  the  insur- 
gents the  character  of  l)elligerents"  and  removc^d  all  restrictions  on 
naval  int(>i-course;  that  Great  Britain  had  taken  similar  actioiu  but 
that,  as  her  withdrawal  of  the  twenty-four  hours*  rul(>  was  not  al)so- 
lute,  "reciprocal  measures"  would  be  extended  to  her  vessels;   that 

<i  Dip.  Cor.  18(55,  I.  409. 
''  Dip.  Cor.  1865,  I.  407-408. 

Olr.  Seward,  Sec.  of  State,  to  Mr.  Welley,  Sec.  of  the  Navy,  .Inne  19.  1865,  Dip. 
Cor.  1865,  I.  410. 


188  states:  recognition  and  continuity.  [§  66. 

the  ))l(H-ka(lo  of  the  ports  and  coast  of  the  United  States  would  soon 
cease,  and  that  with  the  cessation  of  hostilities  the  belligerent  right 
of  search  would  also  cease."  On  June  28  the  President  issued  a 
proclamation  terminating  the  blockade.''  In  a  letter  to  the  lords  of 
the  admiralty  of  October  13,  1865,  Earl  Kussell.  advei-ting  to  the 
reservation  as  to  the  twenty-four  hours'  rule,  stated  that  all  restrictive 
mejtsures  on  United  States  men-of-war  in  British  wat<^rs  were  to  be 
considered  as  at  an  end.'"  Mr.  Welles  was  in  consequence  requested 
to  inform  the  officers  of  the  Navy  that  the  instructions  previously 
given  them  "to  make  discriminations  in  regard  to  their  visits  in 
British  ports  and  their  intercourse  with  British  naval  vessels"  were 
countermanded  and  withdrawn.'' 

Spain.  ]\v  a  royal  decree  of  June  4,  1865,  annulled  the  royal  decree 
of  June  17,  18«)1.  declaring  her  neutrality,  and  thus  withdrew  her 
concession  of  belligerent  rights  to  the  Confederacy.'^^ 

"This  subject  [of  the  recognition  of  belligerency]  received  a  full 
Correspondence  of  discussion  in  the  correspondence  between  Mr.  Adams 
Mr.  Adams  and  and  Earl  Russell.  ))eginning  April  7  and  ending  Sep- 
Eari  Risseli.  tember  18.  1865.  The  principal  contest  was  whether 
^^®^  the  recognition  b}-  Great  Britain  of  belligerent  rights 

in  the  rebel  Stales  was  '  unprecedented  and  precipitate.'  as  alleged  by 
Mr.  Adams.  *  *  *  The  rule  Mr.  Adams  lays  down  is  this:  'When- 
ever an  insurrection  against  the  established  government  of  a  country 
takes  place,  the  duty  of  governments,  under  obligations  to  maintain 
peace  and  friendship  with  it.  appears  to  be,  at  first,  to  abstain  care- 
fully from  any  step  that  may  have  the  smallest  influence  in  afi'ecting 
the  result.  Whenever  facts  occur  of  which  it  is  necessary  to  take 
notice,  either  because  they  involve  a  necessity  of  protecting  personal 
interests  at  home  or  avoiding  an  implication  in  the  struggle,  then  it 
appears  to  l)e  just  and  right  to  provide  for  the  emergency  b}'  specific 
measures,  precisely  to  the  extent  that  may  be  required,  but  no  farther. 
It  is.  then,  facts  alone,  and  not  appearances  or  presumptions,  that 
justify  action.  But  even  these  are  not  to  be  dealt  with  farther  than 
the  occasion  demands:  a  rigid  neutrality  in  whatever  is  done  is  of 
course  understood.  If.  after  the  lapse  of  a  reasonable  period,  there 
be  little  prospect  of  a  termination  of  the  struggle,  especially  if  this  be 
carried  on  upon  the  ocean,  a  recognition  of  the  parties  as  belligerents 
appears  to  be  justifiable:  and  at  that  time,  so  far  as  lean  ascertain, 
such  a  step  has  never  in  fact  been  objected  to."     He  contends  that  the 


«  Dip.  Cor.  1865,  I.  414. 

''Dip.  Cor.  1865.  I.  412.     Sw  als^o,  as  to  the  action  of  (ireat   Britain,  iil.  4'iS,  445, 
4.5:;. 

'Dip.  Cor.  186.5,  I.  611. 

''  Dip.  Cor.  1865,  I.  ti27-628. 

'  Dip.  Cor.  18t>5,  II.  .540. 


§66.]  RECOGNITION    OF    BELLIGERENCY.  189 

recognition  of  belligerent  rights  in  the  American  colonics,  in  their 
war  of  independence,  by  France  and  Holland,  was  not  made  generality 
and  for  all  purposes,  but  onW  to  meet  existing  facts,  and  not  until  the 
presence  of  American  war  vessels  in  their  ports  made  a  decision  neces- 
sar}^;  and  that  France  and  England  alike  seemed  to  consider  that  a 
recognition  of  belligerency  was  an  unfriendly  act,  unless  justified  by 
necessity.  He  considers  the  belligerent  rights  of  the  South  American 
provinces  to  have  been  recognized  upon  the  same  principles,  and  refers 
to  late  civil  wars  in  Europe,  involving  states  more  or  less  maritime, 
where  no  such  recognition  had  been  made.  He  contends  that  the 
recognition  in  this  instance  created  all  the  naval  power  the  rebellion 
possessed,  and  was  so  influential  upon  its  subsequent  history  that  Great 
Britain  and  France  are  not  entitled  to  the  argument  that  the  event 
justified  their  action.  Earl  Russell  does  not  seem  to  difl^er  from  Mr. 
Adams  on  the  general  principles.  He  contends  that  the  state  of  things 
upon  which  the  Government  was  required  to  act  had  no  exact  parallel, 
and  must  be  judged  by  itself.  He  protests  that  the  overt  and  formal 
acts  of  the  parties  to  the  war  are  not  alone  to  be  considered;  and, 
referring  to  the  extent  of  the  territory,  population,  and  resources  of 
the  rebellion;  the  existence  of  its  completely  organized  State  and  gen- 
eral governments;  its  unequivocal  determination  to  treat  as  war,  b\" 
sea  and  land,  an}-  acts  of  authority  which  the  United  States,  on  the 
other  hand,  had  equally  determined  to  exert;  the  long  antecedent  his- 
tory and  preparations  for  this  revolution;  and  the  certainty  of  the 
magnitude  and  extent  of  the  war  and  its  rapid  development  whenever 
it  should  begin,  and  that  it  would  require  the  instant  decision  of  mari- 
time questions  by  neutral  vessels  of  war  and  merchantmen  alike,  he 
argues  that  it  was  necessary  for  England  to  determine  at  once,  upon 
facts  and  probabilities,  whether  she  should  permit  the  right  of  search 
and  blockade  as  acts  of  war,  and  whether  the  letters  of  marque  and 
public  ships  of  the  rebels,  which  might  appear  at  once  in  manj-  parts 
of  the  world,  should  be  treated  as  pirates  or  as  lawful  l^elligerents. 
On  this  subject,  see  further  Mr.  Bemis's  pamphlets  on  the  Recognition 
of  Belligerency,  Boston,  1865;  letter  of  Mr.  Harcourt  ("Historicus'), 
London  Times,  March  22,  1865;  Lord  Lyons  to  Lord  J.  Russell,  April 
22,  1861;  Mr.  Bright's  speech,  March  13,  1865;  Earl  RusselFs  speech, 
March  28,  1865;  proclamations  of  President  Lincoln  of  15th  and  19th 
April,  1861,  and  of  Jefferson  Davis,  17th  April,  1861,  and  of  Queen 
Victoria,  18th  May,  1861." 

Note  of  Mr.  Dana,  Dana's  Wheaton,  §  23,  note  15,  pp.  37-38. 

The  correspondence  referred  to  in  Mr.  Dana's  note  is  as  follows:   Mr.  Adams 

to  Earl  Russell,  April  7,  1865,  Dip.  Cor.  1865,  I.  316;  i:arl  Russell  to  ^[r. 

Adams,  May  4,  1865,  id.  356;  Mr.  Adams  to  Earl  Russell,  May  20,  1865, 

id.  375;  Earl  Russell  to  Mr.  Adams,  Aug.  30,  1865,  id.  536;  Mr.  Adams  to 

Earl  Russell,  Sept.  18,  1865,  id.  554. 


190  states:  recognition  and  continuity.  [§  QQ. 

Mr.  Dana  fails  to  l)rinjj  out  in  his  sninniary  of  the  correspondence  Karl  Rus- 
sell's strenuous  a.«sertion  of  the  position  tliat  President  Lincoln's  proclama- 
tion of  blockade  of  A]>ril  19,  IStil,  was  itself  a  recognition,  and  the  first 
recognition,  of  the  l^elligerency  of  the  Confe<lerate  States.  Denying  in  his 
note  of  May  4,  18G5,  that  the  Queen's  j)roclaniation  of  neutrality  of  May  13, 
1861,  was  "precipitate,"  Earl  Russell  declared:  "It  wasi,  on  the  contrary, 
your  own  Government  which,  in  assuming  the  belligerent  right  of  block- 
a<le,  recognized  the  Southern  States  a,s  belligerents.  Had  they  nf)t  been 
l)elligerents  the  armed  ships  of  the  United  States  would  have  had  no  right 
to  stop  a  single  British  ship  uj)on  the  high  seas."  Earl  Russell  maintains 
thi.s  position  by  "an  extended  argmnent  which  he  supplemented  in  his 
note  of  Aug.  80,  18(55  (Dip.  Cor.  lS(>o,  I.  588)  with  a  long  quotation  from 
the  opinion  of  the  Supreme  Court  of  the  United  States  in  the  prize  cases. 

"In;?iiri"oction  aj^ainst  a  govenunont  niay  or  may  not  culminate  in  an 

oi'ganized  ivbollion.  l)iit  a  civil  war  always  begins  I)}' 

insurrection  ao"ainst  the  lawful  authority  of  the  sfoyern- 
.  Supreme  Court.  .  *  .  -^  "  . 

ment.  A  ciyil  war  is  never  solemnly  declared;  it 
becomes  sucli  l)y  its  accidents — the  number,  power,  and  organization 
of  the  persons  who  originate  and  carry  it  on.  When  the  party  in 
rebellion  occupy  and  hold  in  a  hostile  manner  a  certain  portion  of 
territory;  have  declared  their  independence;  have  cast  off  their  alle- 
giance; have  organized  armies;  have  commenced  hostilities  against 
their  former  sovereign,  the  world  acknowledges  them  as  belligerents, 
and  the  contest  a  war.  *  *  *  If  a  Avar  l>e  made  by  invasion  of  a 
foreign  nation,  the  President  is  not  only  authorized  but  bound  to  resist 
force  by  force.  *  *  *  And  whether  the  hostile  party  be  a  foreign 
invader,  or  States  organized  in  rebellion,  it  is  none  the  less  a  war, 
although  the  declaration  of  it  l)e  ^  unilateral.^  -x-  *  *  -■pjjg  jj^^.  ^^ 
nations  *  *  *  contains  jio  such  anomalous  doctrine  as  that  which 
this  court  are  now  for  the  first  time  desired  to  pronounce,  to  wit: 
That  insurgents  who  have  risen  in  rebellion  against  their  sovereign, 
expelled  her  courts,  established  a  revolutionar}^  government,  organized 
armies,  and  conunenced  hostilities,  are  not  enemies  because  the}"  are 
traitors;  and  a  war  levied  on  the  government  by  traitors,  in  order 
to  dismember  and  destroy  it,  is  not  a  war  because  it  is  an  'insurrec- 
tion.' *  *  *  The  j)r()clamati()n  of  Itlockade  is  itself  official  and 
conclusive  evidence  to  the  court  that  a  state  of  war  existed  which 
demanded  and  authorized  a  recourse  to  such  a  measure  under  the 
circumstances  peculiar  to  the  case." 

Prize  Cases  (18()2),  2  Black,  (585. 

Four  vessels  were  involved  in  these  cases — the  schooner  Crenshaw,  captured 
May  17,  1861;  the  British  bark  Hiawatha,  capture<l  May  20;  the  Mexican 
schooner  Brilliante,  captured  .luiie  28;  the  British  brig  Amy  Warwick, 
captured  July  10. 

The  President,  .\pril  l!»,  IStil,  proclaimed  a  blockade  of  the  ])orts  of  South 
Carolina,  (ieorgia,  Alabama,  Florida.  .Mi.<sissij)j)i,  Louisiana,  and  Texas, 
"in  pursuance  of  the  laws  of  the  United  States,  and  of  the  law  of  nations 
in  such  case  provided." 


§  66.]  RECOGNITION  OF  BELLIGERENCY.  191 

April  27  he  proclaimed  a  blockade  of  the  ports  of  Virginia  and  North  Carolina. 

"It  would  seem,  then,  that  if  the  British  Government  erred  in  thinking  that 
the  war  liegan  as  early  as  Mr.  Lincoln's  proclamation  in  (piestion,  they 
erred  in  company  with  our  Supreme  Court.  (Seethe  'Alabama  question,' 
New  Englander  for  July,  1869;  Black's  Reports,  ii,  (585  f.;  Dana  on 
Wheaton,  374,  875;  Lawrence's  Wheaton  (2d  ed.,  supplem.),  j).  bi;  and 
Pomeroy's  Introd.  to  Constit.  Law,  §§  447-458. )"  (Woolsey,  Int.  Law, 
app.  iii,  note  19.) 

In  the  Prise  Cases  it  was  "simply  held,  that  when  parties  in  rebellion 
had  occupied  and  held  in  a  hostile  manner  a  portion  of  the  territory 
of  the  country,  declared  their  independence,  cast  off  their  allegiance, 
organized  armies,  and  commenced  hostilities  against  the  Government 
of  the  United  States,  war  existed;  that  the  President  was  bound  to 
recognize  the  fact,  and  meet  it  Avithout  waiting  for  the  action  of  Con- 
gress; that  it  was  for  him  to  determine  what  degree  of  force  the  crisis 
demanded,  and  whether  the  hostile  forces  were  of  such  magnitude  as 
to  require  him  to  accord  to  them  the  character  of  belligerents;  and 
that  he  had  the  right  to  institute  a  blockade  of  ports  in  their  posses- 
sion, which  neutrals  were  bound  to  recognize.  It  was  also  held,  that 
as  the  rebellious  parties  had  formed  a  confederacy,  and  thus  become 
an  organized  body,  and  the  territory  occupied  by  them  was  defined, 
and  the  President  had  conceded  to  this  organization  in  its  militar}^ 
character  belligerent  rights,  all  the  territory  must  be  regarded  as  ene- 
my's territor}^,  and  its  inhabitants  as  enemies,  whose  property  on  the 
high  seas  would  be  lawful  subjects  of  capture.  There  is  nothing  in 
these  doctrines  which  justified  the  Confederate  States  in  claiming  the 
status  of  foreign  States  during  the  war,  or  in  treating  the  inhabitants 
of  the  loyal  States  as  alien  enemies." 

Williams  r.  Bruffy  (1877),  96  U.  S.  176,  189. 

"To  the  Confederate  Government  was  conceded,  in  the  intercut  of 
humanity,  and  to  prevent  the  cruelties  of  reprisals  and  retaliation,  such 
belligerent  rights  as  belonged,  under  the  law  of  nations,  to  the  armies 
of  independent  Governments  engaged  in  war  against  each  other.  The 
Confederate  States  were  belligerents  in  the  sense  attached  to  that  Avord 
by  the  law  of  nations." 

Harlan,  J.,  Ford  v.  Surget,  97  V.  S.  594. 

"It  has  been  held  by  this  court  in  repeated  instatices  that,  though 
the  late  war  Avas  not  between  independent  nations,  yet.  as  it  was 
between  the  people  of  different  sections  of  the  country,  and  the  insur- 
gents were  so  thoroughh'  organized  and  formidable  as  to  necessitate 
their  recognition  as  l^ellige rents,  the  usual  incidents  of  a  war  l)etween 
independent  nations  ensued.  The  rules  of  war,  as  recognized  l)v  the 
pul)lic  law  of  civilized  nations,  became  applicable  to  the  contending 
forces.  Their  adoption  was  seen  in  the  exchange  of  prisoners,  the 
release  of  officers  on  parole,  the  recognition  of   flags  of    truce,  and 


192  states:  recognition  and  continuity.  [§  66. 

other  iirninj>oinonts  dcsit^ned  to  mitigate  the  rigors  of  warfare.  The 
inhabitants  of  the  Confederate  States  on  the  one  hand,  and  the  States 
which  adhered  to  the  Union  on  the  other,  became  enemies,  and  sub- 
ject to  be  treated  as  such,  without  regard  to  their  individual  opinions 
or  dispositions;  while  during  its  continuance  commercial  intercourse 
l)etween  them  was  forl)idden,  contracts  between  them  were  suspended, 
and  the  courts  of  each  were  closed  to  the  citizens  of  the  other. 
Brn,rn  r.  Ilhittx,  15  Wall.  177.  IS-t." 

United  States  v.  Pacific  Tiiiilroad,  120  U.  S.  227,  238  (1887). 

"Tlie  riglit.s  and  olilijrations  of  a  belligerent  were  conceded  to  it  [the  Confed- 
erate (iovernnient],  in  its  military  character,  very  H<>on  after  the  war 
he<ian,  from  motives  of  hnmanity  and  expediency  by  the  United  "States." 

Thorinjrton  r.  Smith,  S  Wall.  1,  ([uoted  in  Baldy  r.  Hnnter,  171  U.  S.  388,  393 
(1898). 

'•The  President  recognizes  the  right  of  every  power,  when  a  civil 
conflict  has  arisen  within  another  state,  and  has 
■  attained  a  sufficient  complexity,  magnitude,  and  com- 
pleteness, to  define  its  own  relations  and  those  of  its 
citizens  and  subjects  toward  the  parties  to  the  conflict,  so  far  as  their 
rights  and  interests  are  necessarily  affected  by  the  conflict. 

""The  necessity  and  the  propriety  of  the  original  concession  of  bel- 
ligerency by  (ireat  Britain  at  the  time  it  was  made  have  been  contested 
and  are  not  admitted.  They  certainly  are  questionable,  but  the  Presi- 
dent regards  that  concession  as  a  part  of  the  case  only  so  far  as  it 
shows  the  beginning  and  the  animus  of  that  course  of  conduct  which 
resulted  so  disastrously  to  the  United  States.  It  is  important,  in  that 
it  foreshadows  sul>se((uent  events. 

"There  were  other  powers  that  were  contemporaneous  with  England 
in  similar  concession,  but  it  was  in  England  only  that  the  concession 
was  su])plemented  by  acts  causing  direct  damage  to  the  United  States. 
The  President  is  careful  to  make  this  discrimination,  because  he  is 
anxious  as  nuich  as  ])<)ssibl('  to  simplify  the  case  and  to  bring  into  view 
these  subsecjuent  acts,  which  are  so  important  in  determining  the  ques- 
tion between  the  two  coiuitries." 

Mr.  Fi.-^h,  Sec.  of  State,  to  Mr.  Motii-y,  mini.«ter  to  England,  May  15,  1869,  in 
relation  to  the  Alabama  tlaims.      (S.  Hx.  Doc.  11,  41  Cong.  3  Se.'ss.  4-5.) 

Mr.  .Motley  wa.«  also  instrncted,  in  his  private  a.s  well  a.s  his  official  intercourse, 
"to  place  the  canse  f>f  grievance  against  (ireat  Britain,  not  so  much  upon 
iier  recognition  of  the  insurgents'  state  of  war,  but  upon  her  conduct 
under  and  subsef}uent  to  such  recognition." 

See  Moore,  International  Arbitrations,  I.  499,  512  et  seq. 

Mr.  Fish,  in  an  in.-jtruction  to  Mr.  Motley,  Sept.  25,  1869,  amplified  his  view, 
a.*J  follows: 

"The  Presi<lent  does  not  deny,  on  the  contrary  he  maintains,  that  every  sov- 
ereign power  decides  for  itself,  on  its  responsibility,  the  question  whether 
or  not  it  will,  at  a  given  time,  accord  the  status  of  belligerency  to  the 
insurgent  subjects  of  another  power,  as  also  the  larger  question  of  the 
independence  of  such  subjects  and  their  accession  to  the  family  of  sov- 
ereign states. 


§  67.]  RECOGNITION  OF  BELLK4KRENCY.  193 

"But  the  rightfulness  of  such  an  act  depends  on  the  occasion  and  the  circum- 
stances, and  it  is  an  act,  Ulte  the  sovereign  act  of  war,  wliich  tlie  moraHty 
of  the  public  law  and  practice  requires  should  l)e  delil)erate,  seasonable,  and 
just,  in  x'eference  to  surrounding  facts;  national  l)elligerency,  indeed,  like 
national  independence,  being  l)ut  an  existing  fact,  officially  recognized 
as  such,  without  which  such  a  declaration  is  only  the  indirect  manifesta- 
tion of  a  particular  line  of  jjolicy. 

"But  circumstances  might  arise  to  call  for  it.  A  sliij)  of  the  insurgents  might 
appear  in  the  port  of  the  neutral,  or  a  collision  might  occur  at  sea,  impos- 
ing on  the  neutral  the  necessity  to  act.  Or  actual  liostility  might  have 
continued  to  rage  in  the  theater  of  insurgent  war,  coml)at  after  combat 
might  liave  been  fought  for  such  a  perif)d  of  time,  a  mass  of  men  may 
have  engaged  in  actual  war  until  they  should  have  acquired  the  ctmsist- 
ency  of  military  power,  to  re]ieat  the  idea  of  ]Mr.  Canning,  so  as  evidently 
to  constitute  the  fact  of  belligerency  and  to  justify  the  recognition  by  the 
neutral.  Or  the  nearness  of  the  seat  of  hostilities  to  the  neutral  may  com- 
pel the  latter  to  act;  it  miglit  be  his  sovereign  duty  to  act,  however  incon- 
venient such  action  should  be  to  the  legitimate  Government."  (For.  Rel. 
1873,  III.  336.) 

9.  Cuba. 

§67. 

"I  have  the  honor,  by  the  President's  direction,  to  offer  a  few 
sugo^estions  as  a  basis  for  orders  to  the  Commander  of 
the  North  Atlantic  Squadron  during  the  existing  civil 
war  in  Cuba.  Those  hostilities  must  be  regarded  as 
strictly  of  a  domestic  character.  As  such  they  can  not  impart  to 
Spain,  under  the  public  law  or  our  treaties  with  her,  any  belligerent 
rights  on  the  high  seas,  nor  have  we  recognized  such  rights  anywhere 
as  possessed  by  those  who  are  in  arms  against  Spanish  authority  in 
that  island.  The  right  of  search  for  contraband  is  a  right  to  be  exer- 
c  ised  against  a  public  enemy  only  on  the  high  seas.  It  can  not  there 
lawfully  ])e  exercised  against  a  neutral  who  has  not  recognized  both 
parties  as  belligerents.  If,  therefore,  the  commander  of  our  men-of- 
war  should  ascertain  that  a  vessel  of  the  United  States  is  about  to  be 
searched  on  the  high  seas  b}'^  a  Spanish  vessel  they  may  be  authorized 
to  resist  such  search  with  all  the  force  at  their  disposal.  If,  also, 
they  should  fall  in  with  a  vessel  of  the  United  States  which  has  been 
captured  by  a  Spaniard  on  the  high  seas  on  the  ground  of  being  a 
carrier  of  contraband,  or  on  any  other  pretext  involving  a  claim  to 
belligerent  rights  in  that  quarter,  they  may  be  authorized  to  recapture 
the  prize  if  they  should  feel  competent  for  that  purpose.  *  *  * 
It  is  presumed  to  be  umiecessary  to  suggest  that  the  naval  commanders 
should  be  ordered  to  be  careful  as  to  facts,  to  be  firm  and  ^'igilant 
in  protecting  their  countrymen,  but  at  the  same  time,  avoid  giving 
occasion  for  unnecessary  or  unprofitable  controversy  with  Spain  by 
touching  upon  her  unquestionabhi  rights." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Borie,  Sec.  of  the  Navy,  May  18,  1869,  81  MS. 
Dom.  Let.  124. 

H.  Doc.  551 13 


194  states:  recognition  and  continuity.  [§  67. 

'"I  am  requested  by  the  Seoretarv  to  say  to  you  that  he  has  been 
told  that  the  counsel  of  the  'Hornet'  will  probably  insist  upon  and  try 
to  make  much  of  the  recognition  of  Cuba  by  Peru,  Chile,  and  Mexico, 
and  will  claim  that  the  United  States  have  offered  their  'mediation*  in 
behalf  of  the  Cul)ans.  which  by  the  public  law  can  only  be  offered  as 
between  recognized  belligerents.  Th(i.  Secretary  desires  me  to  say  to 
3'ou  in  answer  to  this: 

'"  1st.  That  we  have  no  intelligence  that  Chile  has  acted  at  all  in  this 
matter. 

''2d.  That  ^Mexico  has  not  recognized  a  state  of  belligerency,  but 
has  authorized  the  Cuban  tiag  to  ))e  received  in  their  ports. 

"3d.  That  it  is  not  true  that  the  Ignited  States  have  offered  to  medi- 
ate between  the  parties.  They  have  only  offered  to  Spain  their  'good 
offices'  to  bring  about  a  settlement  which  is  a  very  different  thing,  and 
one  that  may  well  b(^  done  by  a  neutral  between  a  sovereign  power 
and  insurgents  in  arms  against  it. 

'"Ith.  That  the  light  in  which  the  Cubans  are  regarded  can  in  no 
event  make  any  difference  on  an  arraignment  for  an  alleged  violation 
of  the  provisions  of  the  statutes  of  1818." 

Mr.  J.  C\  B.  Davi?,  As.«istant  Secretary,  to  Mr.  Phelps,  U.  S.  Dii^t.  Att'y,  New 
York,  Oct.  14,  1869,  82  MS.  Doni.  I^t.  195. 

"'The  contest  [in  Cuba]  has  at  no  time  assumed  the  conditions  which 

auKHint  to  a  war  in  the  sense  of  international  law.  or 

•^  ,oon       which  Avould  show  the  existence  of  a  <7e  facto  politi- 

Message,  1869.  .        .  «    ,       .  n-    •  '  • 

cal  organization  of  the  insurgents  sufficient  to  justify 

a  recognition  of  belligerency. 

''The  principle  is  maintained,  however,  that  this  nation  is  its  own 

judge  when  to  accord  the  rights  of  belligerency,  either  to  a  people 

struggling  to  free  themselves  from  a  government  the}'  believe  to  be 

oppressive,  or  to  independent  nations  at  war  with  each  other." 

President  Grant,  First  Annual  Message,  Dec.  6,  1869. 

See,  as  to  the  ix)siti(in  of  President  Grant  and  Mr.  Fish  on  the  question  of 
recognizing  Cu])an  l>elligerency,  J.  C.  Bancroft  DaviSj  Mr.  Fish  and  the 
Alabama  Claims,  20-21,  3.>-:i<i;  The  Atlantic  Monthly,  February,  1894, 
217-218. 

"The  question  of  belligerency  is  one  of  fact  not  to  T:>e  decided  by 

sympathies  for  or  prejudices  against  either  party.    The 

pecia  message,      j-elations  between  the  parent  state  and  the  insurgents 
June  13,  1870.  .        ,         '  ,  .     '^ 

must  amount.  Jn  fact,  to  war  in  the  sense  of  interna 

tional  law.     Fighting,  though  tierce  and  protracted,  does  not  alone 

constitute  war;   there  must  be  military  forces  acting  in  accordance 

with  the  rules  and  customs  of  war — flags  of  truce,  cartels,  exchange  of 

prisoners.  &c.  — and  to  justify  a  recognition  of  belligerency  there  mu.st 

bcj  al)ove  all,  a  <///  faeto  political  organization  of  the  insurgents  suffi- 


§  67.]  RECOGNITION    OF    BELLIGERENCY.  195 

c'ient  in  character  and  resources  to  constitute  it,  if  left  to  itself,  a  state 
among  nations  capable  of  discharging  the  duties  of  a  state,  and  of 
meeting  the  just  responsibilities  it  may  incur  as  such  toward  other 
powers  in  the  discharge  of  its  national  duties. 

"Applying  the  best  information  which  I  have  l)een  enabled  to  gather, 
whether  from  official  or  unofficial  sources,  including  the  very  exagger- 
ated statements  which  each  party  gives  to  all  that  may  prejudice  the 
opposite  or  give  credit  to  its  own  side  of  the  question,  I  am  unable  to 
see,  in  the  present  condition  of  the  contest  in  Cuba,  those  elements 
which  are  requisite  to  constitute  war  in  the  sense  of  international  law. 

•'The  insurgents  hold  no  town  or  city:  have  no  established  seat  of 
government;  they  have  no  prize  courts:  no  organization  for  the  receiv- 
ing and  collecting  of  revenue;  no  seapoi-t  to  which  a  prize  may  be 
carried  or  through  which  access  can  be  had  b^'  a  foreign  power  to  the 
limited  interior  territory  and  mountain  fastnesses  which  they  occupy. 
The  existence  of  a  legislature  representing  any  popular  constituency 
is  more  than  doubtful. 

"In  the  uncertainty  that  hangs  around  the  entire  insurrection  there 
is  no  palpable  evidence  of  an  election,  of  any  delegated  authority,  or 
of  any  government  outside  the  limits  of  the  camps  occupied  from  da}- 
to  day  by  the  roving  companies  of  insurgent  troops.  There  is  no 
conunerce:  no  trade,  either  internal  or  foreign:  no  manufactures. 

"The  late  commander  in  chief  of  the  insurgents,  having  recenth' 
come  to  the  United  States,  publicly  declared  that  'all  conunercial 
intercourse  or  trade  with  the  exterior  world  has  been  utterly  cut 
ofiV  and  he  further  added,  'To-da}'  we  have  not  ten  thousand  arms  in 
Cuba.' 

"It  is  a  well-established  principle  of  public  law  that  a  recognition  by 
a  foreign  State  of  belligerent  rights  to  insurgents  undei"  circumstances 
such  as  now  exist  in  Cuba,  if  not  justified  by  necessity,  is  a  gratuitous 
demonstration  of  moral  support  to  the  rebellion.  Such  necessity  may 
\i't  hereafter  arrive,  but  it  has  not  yet  ari'ived.  nor  is  its  probability 
clearly  to  be  seen. 

"If  it  be  war  between  Spain  and  Cuba,  and  be  so  recognized,  it  is  our 
dutv  to  provide  for  the  consequences  which  may  ensue  in  the  embar- 
rassment to  our  commerce  and  the  interference  with  our  revenue. 

"If  belligerency  be  recognized,  the  commercial  marine  of  the  United 
States  becomes  liable  to  search  and  to  seizure  l)y  tJie  conunissioned 
cruisers  of  both  parties — they  become  su)>ject  to  the  adjudication  of 
prize  courts. 

"Our  large  coastwise  trade  between  the  Atlantic  and  the  Gulf  States, 
and  ])etween  both  and  the  Isthimis  of  Panama  and  the  States  of  South 
America  (engaging  the  larger  part  of  our  conunercial  marine)  passes, 
of  necessity,  almost  in  sight  of  the  island  of  Cuba.  Undei-  the  treaty 
with  Spain  of  1795,  as  well  as  by  the  law  of  nations,  our  vessels  will  be 


196  states:  recognition  and  continuit'X.  [§  67. 

liiiblo  to  visit  on  the  high  .sea.s.  In  case  of  l)elligcrent'y,  the  carn'ing  of 
contraband,  which  now  is  lawful,  becomes  liable  to  the  risks  of  seizure 
and  condemnation.  The  parent  Govei-nment  becomes  relieved  from 
responsibility  for  acts  done  in  the  insurgent  territory,  and  acquires  the 
right  to  exercise  against  neutral  commerce  all  the  powers  of  a  party  to 
a  maritime  war.  To  what  consequences  the  exercise  of  those  powers 
ma}'  lead,  is  a  question  which  I  desire  to  commend  to  the  serious  con- 
sideration of  Congress." 

rre.«ident  (Jrant,  special  messagf,  June  13,  1870. 

"A  recognition  of  the  independence  of  Cuba  being,  in  my  opinion, 
impractical)le   and   indefensil)le,   the   question  which 

"^^^875^*^^^^'  "^'-^t  presents  itself  is  that  of  the  recognition  of  bel- 
ligerent rights  in  the  parties  to  the  contest. 

In  a  former  message  to  Congress  I  had  occasion  to  consider  this 
question,  and  reached  the  conclusion  that  the  conflict  in  Cuba,  dreadful 
and  devastating  as  were  its  incidents,  did  not  rise  to  the  fearful  dignity 
of  war.  Regarding  it  now,  after  this  lapse  of  time,  I  am  unable  to  see 
that  any  notable  success,  or  any  marked  or  real  advance  on  the  part  of 
the  insurgents,  has  essentially  changed  the  character  of  the  contest.  It 
has  acquired  greater  age,  but  not  greater  or  more  formidable  propor- 
tions. It  is  possible  that  the  acts  of  foreign  powers,  and  even  acts  of 
Spain  herself,  of  this  very  nature,  might  ))e  pointed  to  in  defense  of 
such  recognition.  But  now,  as  in  its  past  history,  the  United  States 
should  carefully  avoid  the  false  lights  Avhich  might  lead  it  into  the 
mazes  of  dou))tf  ul  law  and  of  questionable  propriety,  and  adhere  rigidl}' 
and  sternly  to  the  rule,  which  has  ))een  its  guide,  of  doing  only  that 
which  is  right  and  honest  and  of  good  report.  The  ([uestion  of  accord- 
ing or  of  withholding  rights  of  belligerency  must  be  judged,  in  every 
case,  in  view  of  the  particular  attending  facts.  I'nless  justified  by 
necessity,  it  is  always,  and  justly,  regarded  as  an  luifriendly  act,  and 
a  gratuitous  demonstration  of  moral  support  to  the  rebellion.  It  is 
necessary,  and  it  is  reipiired.  when  the  interests  and  rights  of  another 
Government  or  of  its  people  are  so  far  att'ected  by  a  pending  civil  con- 
flict as  to  require  a  definition  of  its  relations  to  the  parties  thereto. 
But  this  conflict  nnist  be  one  which  will  ))e  recognized  in  the  sense  of 
international  law  as  war.  Belligerence,  too,  is  a  fact.  The  mere  exist- 
ence of  contending  armed  bodies,  and  their  occasional  conflicts,  do  not 
constitute  war  in  the  sense  referred  to.  Applying  to  the  existing  con- 
dition of  afl'airs  in  Cuba  the  test  recognized  ])v  publicists  and  writers 
on  international  law,  and  which  have  l)een  observed  by  nations  of  dig- 
nity, honesty,  and  power,  when  free  from  sensitive  or  selfish  and  un- 
worthy motives,  I  fail  to  find  in  the  insurrection  the  existence  of  such 
a  su))stantial  political  organization,  real,  palpable,  and  manifest  to  the 
world,  having  the  forms  and  capable  of  the  ordinary  functions  of  gov- 


§  67.]  RECOGNITION    OF    BELLIGERENCY.  .197 

ernment  toward  its  own  people  and  to  other  state.s.  with  courts  for  the 
administration  of  justice,  with  a  local  haV)itation.  possessino-  .such  oi-gan- 
ization  of  force,  such  material,  such  occupation  of  territory,  as  to  take 
the  contest  out  of  the  categ-ory  of  a  mere  rebellious  insurrection,  or 
occasional  skirmishes,  and  place  it  on  the  territ)le  footino-  of  war.  to 
w^hich  a  recognition  of  belligerency  would  aim  to  elevate  it.  The  con- 
test, moreover,  is  solel}^  on  land;  the  insurrection  has  not  possessed 
itself  of  a  single  sea-port  whence  it  may  send  forth  its  flag,  nor  has  it 
anj'  means  of  communication  with  foreign  powers  except  through  the 
militar}^  lines  of  its  adversaries.  No  apprehension  of  any  of  those  sud 
den  and  difficult  complications  which  a  war  upon  the  ocean  is  apt  to 
precipitate  upon  the  vessels,  both  commercial  and  national,  and  upon 
the  consular  officers  of  other  powers,  calls  for  the  definition  of  their 
relations  to  the  parties  to  the  contest.  Considered  as  a  question  of  expe- 
diency, 1  regard  the  accordance  of  belligerent  rights  still  to  be  as  unwise 
and  premature,  as  I  regard  it  to  ])e.  at  present,  indefensible  as  a  meas- 
ure of  right.  Such  recognition  entails  upon  the  country  according  the 
rights  which  flow  from  it  difficult  and  complicated  duties,  and  requires 
the  exaction  from  the  contending  parties  of  the  strict  observance  of  their 
rights  and  obligations.  It  confers  the  right  of  search  upon  the  high 
seas  b}'  vessels  of  both  parties;  it  would  subject  the  carrying  of  arms 
and  munitions  of  war,  which  now  may  be  transported  freelv  and  without 
interruption  in  the  vessels  of  the  United  States,  to  detention  and  to  pos- 
sible seizure;  it  would  give  rise  to  countless  vexatious  c{uestions,  would 
release  the  parent  Government  from  responsibility  for  acts  done  by  the 
insurgents,  and  would  invest  Spain  with  the  right  to  exercise  the  super- 
vision recognized  by  our  treaty  of  171>.5  over  our  commerce  on  the 
high  seas,  a  very  large  part  of  which,  in  its  traffic,  between  the  Atlantic 
and  the  Gulf  States,  and  between  all  of  them  and  the  States  on  the 
Pacitic,  passes  through  the  waters  which  wash  the  shores  of  Cuba. 
The  exercise  of  this  supervision  could  scarce  fail  to  lead,  if  not  to 
abuses,  certainly  to  collisions  perilous  to  the  peaceful  relations  of  the 
two  states.  There  can  l)e  little  doubt  to  what  result  such  supervision 
would  ])efore  long  draw  this  nation.  It  would  be  unworthy  of  the 
United  States  to  inaugurate  the  possibility  of  such  result,  l)y  measures 
of  questional)Ie  right  or  expediency,  or  by  any  indirection.  Apart 
from  any  question  of  theoretical  right,  I  am  satisfled  that,  while  the 
accordance  of  belligerent  rights  to  the  insurgents  in  Cuba  might  give 
them  a  hope,  and  an  inducement  to  protract  the  struggle,  it  would  be  but 
a  delusive  hope,  and  would  not  remove  the  evils  which  the  Govern- 
ment and  its  people  are  experiencing,  l)ut  would  draw  the  United 
States  into  complications  which  it  has  waited  long  and  already  sufl'ered 
much  to  avoid." 

President  Grant,  Seventh  Annual  Message,  December  7,  1875 


19.S  states:  reooonition  and  continuity.  [§67. 

■'Cuba  is  atrain  gravely  disturbed.     An  insurrection,  in  some  respects 

more  active  than  the  last  preceding  revolt,  which  con- 

^"^'^"^g*^**°  °^    tinned  from  18«)8  to  187s.  now  exists  in  a  large  part 

of  the  eastern  interior  of  the  island,  menacing  even 

some  populations  on  the  coast." 

Prei^ident  C'levelainl,   Annual  Message,  Dec.  2,  1895.     See,  also,  opinion  of 
Attorney-General  Harmon,  Dec.  10,  1S95,  21  Op.  267. 

'•As  the  contest  has  gone  on.  the  pretense  that  civil  government 

exists  on  the  island,  except  so  far  as  Spain  is  able  to 

President  cieve-  n^aintain  it,  has   l)een  practicall}'  abandoned.     Spain 

iMfi^    message,  ^j^^^  keep  on  foot  such  a  government,  more  or  less 

imperfectly,  in  the  large  towns  and  their  immediate 
suburbs.  But  that  exception  ))eing  made,  the  entire  countr\'  is  either 
given  over  to  anarchy  or  is  subject  to  the  military  occupation  of  one 
or  the  other  party.  It  is  reported,  indeed,  on  reliable  authority  that, 
at  the  demand  of  the  commander  in  chief  of  the  insurgent  army,  the 
putative  Cuban  government  has  now  given  up  all  attempt  to  exercise 
its  functions,  leaving  that  government  confessedly  (what  there  is  the 
best  reason  for  supposing  it  always  to  have  ])een  in  fact)  a  government 
merely  on  paper.  *  *  *  Jt  ^y^^  {^t  lirst  proposed  that  belligerent 
rights  should  be  accorded  to  the  insurgent.s — a  proposition  no  longer 
urged  because  untimely  and  in  practical  operation  clearly  perilous  and 
injurious  to  our  own  interests." 

President  Cleveland,  Annual  Message,  Dec.  7,  1896. 
'•  Recognition  of  the  belligerency  of  the  Cuban  insurgents  has  often 

been  canvassed  as  a  possible  if  not  inevitable  step  both 

President    McKin-  jj^  regard  to  the  previous  ten  3- ears'  struggle  and  dur- 

Yg-        -ss*?®-  j,^g  the  present  war.     I  am  not  unmindful  that  the 

two  Houses  of  Congress  in  the  spring  of  1806  ex- 
pressed the  opinion  l)v  concurrent  resolution  that  a  condition  of  public 
war  existed  requiring  or  justifying  the  recognition  of  a  state  of  bellig- 
erency in  Cuba,  and  during  the  extra  session  the  Senate  voted  a  joint 
resolution  of  like  import,  which,  however,  was  not  brought  to  a  vote 
in  the  House  of  Representatives.  In  the  presence  of  these  significant 
expressions  of  the  sentiment  of  the  legislative  branch  it  behooves  the 
Executive  to  soberly  consider  the  conditions  under  which  so  impor- 
tant a  measure  must  needs  rest  for  justification.  It  is  to  be  serioush' 
considered  whether  the  Cuban  insurrection  possesses  beyond  dispute 
the  attributes  of  statehood,  which  alone  can  demand  the  recognition 
of  belligerency  in  its  favor.  Possession,  in  short,  of  the  essential 
qualifications  of  sovereignt\'  by  the  insurgents  and  the  conduct  of 
the  war  by  them  according  to  the  received  code  of  war  are  no  less 
important  factors  toward  the  determination  of  the  problem  of  bel- 
ligerency than  are  the  influences  and  consequences  of  the  struggle 
upon  the  internal  polity  of  the  recognizing  state. 


§67.]  RECOGNITION    OF    BP:LLIGEKKX('Y.  199 

"The  wise  utterances  of  President  Grant  in  his  nieniorabh'  messao-e 
of  December  7.  1S75.  are  sic^nally  reh'\  ant  to  tlie  present  situation 
in  Cuba,  and  it  may  be  wholesome  now  to  recall  them.  At  that  time 
a  ruinous  conflict  had  for  seven  3'ears  wasted  the  neiohboring-  island. 
During  all  those  years  an  utter  disregard  of  the  laws  of  civilized 
warfare  and  of  the  just  demands  of  humanitv,  which  called  forth 
expressions  of  condemnation  from  the  nations  of  Christendom,  con- 
tinued unabated.  Desolation  and  ruin  pervad<^d  that  productive 
region,  enormously  affecting  the  commerce  of  all  commercial  nations, 
but  that  of  the  United  States  more  than  any  other  by  reason  of 
proximity  and  larger  trade  and  intercourse.  At  that  juncture  Gen- 
eral Grant  uttered  these  words,  which  now,  as  then,  sum  up  the 
elements  of  the  problem:     *     *     *« 

•'Turning  to  the  practical  aspects  of  a  recognition  of  belligerency 
and  reviewing  its  inconveniences  and  positive  dangers,  still  further 
pertinent  considerations  appear.  In  the  code  of  nations  there  is  no 
such  thing  as  a  naked  recognition  of  l)elligerenc\'  unaccompanied  b^' 
the  assumption  of  international  neutrality.  Such  recognition  with- 
out more  will  not  confer  upon  either  party  to  a  domestic  conflict 
a  status  not  theretofore  actually  possessed  or  affect  the  relation  of 
either  party  to  other  states.  The  act  of  recognition  usually  takes 
the  form  of  a  solemn  proclamation  of  neutrality  which  recites  the 
de  facto  condition  of  belligerency  as  its  motive.  It  announces  a 
domestic  law  of  neutrality  in  the  declaring  state.  It  assumes  the 
international  obligations  of  a  neutral  in  the  presence  of  a  public  state 
of  war.  It  warns  all  citizens  and  others  within  the  jurisdiction  of  the 
proclaimant  that  they  violate  those  rigorous  obligations  at  their  own 
peril  and  can  not  expect  to  be  shielded  from  the  consequences.  The 
right  of  visit  and  search  on  the  seas  and  seizure  of  vessels  and  car- 
goes and  contral)and  of  war  and  good  prize  under  admiralty  law  must 
under  international  law  be  admitted  as  a  legitimate  consequence  of  a 
proclamation  of  belligerency.  While  according  the  eijual  l)elligerent 
rights  defined  by  put)lic  law  to  each  partv  in  our  ports  disfavors  would 
be  imposed  on  both,  which  while  nominally  equal  would  weigh  heavih' 
in  behalf  of  Spain  herself.  Possessing  a  navy  and  controlling  the 
ports  of  Cuba  her  maritime  rights  could  be  asserted  not  only  for  the 
militar}'  investment  of  the  Island  l)ut  up  to  the  margin  of  our  own 
territorial  waters,  and  a  condition  of  things  would  exist  for  which  the 
Cubans  within  their  own  domain  could  not  hope  to  create  a  parallel; 
while  its  creation  through  aid  or  sympathy  from  within  our  domain 
would  be  even  more  impossible  than  now.  with  the  additional  obliga- 
tions of  international  neutralitv  we  would  perforce  assume. 

0  Here  follows  the  passage  given  above,  pp.  196-197. 


200  states:  recognition  and  continuity.  [§  68. 

"The  enforcement  of  this  enlarged  and  onerous  <'ode  of  neutrality 
would  only  be  influential  within  our  own  jurisdiction  by  land  and  sea 
and  applicable  ))y  our  own  instrumentalities.  It  could  impart  to  the 
United  States  no  jurisdiction  between  Spain  and  the  insurgents.  It 
would  give  the  United  States  no  right  of  intervention  to  enforce  the 
conduct  of  the  strife  within  the  paramount  authority  of  Spain  accord- 
ing to  the  international  code  of  war. 

"For  these  reasons  I  regard  the  recognition  of  the  belligerency  of 
the  Cuban  insurgents  as  now  unwise  and  therefore  inadmissible. 
Should  that  step  hereafter  be  deemed  wise  as  a  measure  of  right  and 
duty  the  Executive  will  take  it." 

President  McKinley,  Annual  Mes-^atre,  Dec.  0,  1897. 

Referring  to  the  foregoing  jvassage,  President  ^leKinley,  in  his  special  message 
to  Congress,  April  11,  189S,  on  the  relations  of  the  United  States  to  Spain 
l)y  reason  of  the  warfare  in  Cuba,  said:  "  N'othing  has  since  occurred  to 
change  my  views  in  this  regard;  and  I  recognize  as  fully  now  as  then 
that  the  issuance  of  a  proclamation  of  neutrality,  V)y  which  process  the 
so-called  recognition  of  belligerents  is  published,  could,  of  itself  and 
imattended  by  other  action,  accomplish  nothing  toward  the  one  end  for 
which  we  labor — the  instant  i>a(.'ification  of  Cuba  and  the  cessation  of  the 
misery  that  afflicts  the  island."     (II.  Doc.  405,  55  Cong.  2  sess.  8.) 

10.    CoLO.MBI.\. 

"A  'state  of  war'  has  not  in  a  formal  sense,  either  before  or  after 

the  2<ith  of  A])ril  last,  been  recoonized  l)v  the  Govern- 

Insurrection,  1885.  .   .i       i-    •       i     ^.    .  ''  •     •         •'      ,i       tt    •      i 

ment  ot  tlie  I  nited  states  as  existing  in  the  L  nited 

States  of  Coloml)ia.  nor  have  the  insurgents  now  in  arms  against  the 

latter  Government  ])een  recognized  l)y  the  Government  of  the  United 

States  as  belligerents,  nor.  so  far  as  the  Government  of  the  United 

States  is  advised,  have  th(^  insurgents  in  question  been  recognized  by 

the  United  States  of  Colombia  as  belligerents."' 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Garland,  Attorney-General,  July  1,  1885, 
156  MS.  Dom.  Let.  151. 

This  letter  relates  to  the  insurrection  in  Colombia,  which  formed  a  subject  of 
di.scussioii  in  the  ca.<e  of  the  Ambrose  Light,  25  Fed.  Kep.  443.  In  that 
ca.-^e  the  court  hel<l  that  the  Secretary  of  State  of  the  United  States  had 
given  an  '•imjilied  re<-ognition  "  ofthe  belligerency  of  the  insurgents  in  a 
note  aildre.<.<ed  to  the  Colond)ian  mini.<ter  at  Washington,  April  24,  1885. 
.\  criticism  of  the  dt-cisiou  of  the  court  may  be  found  in  33  Albany  Law 
Journal,  Feb.  i:',.  issii.  p.  1l>."i. 

With  reference  to  tiie  insurrection  prevailing  in  Colombia  in  1900,  Mr.  Hay, 
Secretary  of  State,  advised  the  Colombian  ministerat  Washington,  August 
1,  1900,  that  the  United  States  had  not  at  any  time  considered  the  status 
of  tlie  insurgents  such  as  to  require  an  examination  of  any  possible  claim 
on  their  part  to  belligerent  rights.     t^For.  Kel.  1900,  405.) 


§§  69-70.]  RECOGNITION    OF    BELLIGERENCY.  201 

11.    IlAYTf. 

S69. 

"On  the  ISth  day  of  February,  1889,  neither  of  the  parties  claiming 

ascendency  in  Havti  wa.s  recognized  as  </  hdl'iariuht. 
Factional  contest,    ,,   ,,.  ,  '^.,.        .  ,,        ii •.     i  i      ^i    '  i^ 

1889  nellig-erent  recognition  is  usually  etiected  l)y  the  Presi- 

dent's prochimation  of  neutrality  as  l)etween  two  hos- 
tile parties,  and  no  such  proclamation  has  been  made  in  respect  of  the 
existing  troubles  in  Ha3^ti. 

''No  formal  recognition  of  either  of  the  Haytian  factions  a><  a  Gov- 
ernment by  the  Government  of  the  United  States  had  been  made 
subsequent  to  the  downfall  of  President  Salomon  and  prior  to  the 
18th  of  February  1889.  De  facto  relations  with  the  authorities  in 
possession  of  power  at  Port  au  Prince  have  been  kept  up  through 
the  United  States  minister  at  Port  au  Prince  and  through  the  repre- 
sentative of  (ieneral  Legitime's  Government  in  the  United  States  for 
the  necessary  transaction  of  business.'' 

Mr.  Blaine,  Sec.  of  State,  to  the  Attorney-General,  3Iar.  IS,  1889,  172  MS. 
Doni.  Let.  228. 

This  wan  in  respont^e  to  an  int][uiry  of  the  Attorney-General,  made  in  connec- 
tion with  the  case  of  the  "Madrid"  or  "Conserva,"  whether  "either  or 
any  of  the  factions  contending  with  each  other  for  the  government  in 
Hayti  were  on  the  18th  day  of  February,  1889,  recognized  by  the  Gov- 
ernment of  the  United  States  as  belligerent  power.«,  capable  of  making 
peace  or  carrying  on  lawful  war."  (The  Attorney-General  to  the  Secre- 
tary of  State,  March  16,  1889,  MSS.  Dept.  of  State.) 

"Various  documents  issued  from  the  Department  of  State  have  been 

put  in  evidence,  containing  certain  expressions  which 

equisi  e  evi  ences  ^^^^  court  is  invited  to  examine  in  order  to  find  therein 

of  recognition.  .  .   .  .     ,       ^       .  .   ^       .  . 

an  implied  recognition  ot  the  taction  ot  Ijcgitime  as 

representing  the  Government  of  Hayti.  I  do  not  think  that  in  a  ca.se 
like  this  the  court  is  reciuired  to  deal  with  uncertain  implications  con- 
tained in  such  documents  as  have  been  here  presented.  The  fact  of 
public  recognition  of  any  prince,  state,  colony,  district,  or  people  as  a 
belligerent  is  one  to  Ije  made  known  to  all  men  ))y  pul)lic  proclamation 
from  the  Fxecutive  or  some  public  act  by  necessary  implication  equiv- 
alent to  such  a  proclamation.'" 

Benedict,  J.,  The  Conferva,  88  Fed.  Rei).  431,4:^7. 

13.  Brazil. 

§70. 

At  the  beginning  of  September,  1893,  a  Brazilian  squadron,  consist- 
ing of  the  warships  A(/ukJahan,  Jupiter,  and  Rt-palAlca, 
Naval  revolt,  1893.         ,  ,  ^  i        ,.  i         i  •   i     i     /I    i   . .  , 

and  a  number  or   merchant  vessels  winch  nacl   heen 

seized,  revolted  under  the  command  of  Admiral  Jose  Custodio  de  Mello, 


202  states:  recognition  and  roNTiNriTY.  [§  TO. 

and  ussumod  control  of  the  waters  of  the  inner  hurhor  of  Rio  de  Janeiro. 
The  (Tovernnient  retained  Fort  Santa  Cruz,  which  coniniand.s  the  en- 
trance to  the  harbor,  and  held  the  shore  line  of  the  inner  harbor,  with 
artillery,  infantry,  and  police  forces.  The  army  remained  loyal,  and 
the  i^overnment  was  supported  by  the  Couiifress." 

From  time  to  time  ririn»r  took  phice  between  the  loyal  forts  and  the 
sc[uadron.     On  October  1.  however,  the  commanders 
oreign  ^^  ^|^^^  Eiiirlish.    Italian.    American.   Portugfuese,  and 
representatives.  '^  i  •       i      r         •  • 

1  rench  naval  forces  at  Kio  de  Janeiro,  acting  upon  the 

concurrent  advice  of  their  diplomatic  representatives,  notified  Admiral 
de  Mello.  who  had  threatened  to  l)ombard  the  city,  that  they  would  if 
necessary  use  force  to  prevent  it:  and  the  ministers  at  the  same  time 
requested  the  Government  to  avoid  doing  anything  to  afford  a  pretext 
for  hostile  action  against  the  city.*" 

Mr.  Thompson.  United  States  minister  at  Rio  de  Janeiro,  published 
a  notice  to  American  citizens  that  "lighters,  launches,  sloops,  barges, 
and  all  other  means  of  navigation  used  in  embarking  or  disembarking 
passengers  or  in  loading  or  unloading  freight,  should  carry  the  flag 
of  the  United  States  of  America  at  the  prow  in  order  that  their  traffic 
may  be  performed  safeh'  and  under  the  protection  of  American  war 
vessels."'" 

October  28  Admiral  de  Mello  wrote  'Sir.  Thompson,  from  on  board 

the  Atjuid'thaii.  that  the  insurgents  had  set  up  a  pro- 

0    ecog    yi<;iQ,^ai  government  at  Desterro.  which  is  on  the  island 
nition;  refusal.  ^  .  . 

of  hanta  Catharina  and  the  capital  of  the  State  of  that 

name,  and  asked  that  they  be  recognized  as  belligerents.  Mr.  Thompson 
was  instructed  that  such  recognition  "would  he  an  unfriendly  act  toward 
Brazil,  and  a  gratuitous  demonstration  of  moral  support  to  the  rebellion, 
the  insurgents  having  not.  apparently,  up  to  date  established  and 
maintained  a  political  organization  which  would  justify  such  recogni- 
tion on  the  part  of  the  United  States."  He  was  instructed  "to observe, 
until  further  advised,  the  attitude  of  an  indifferent  .spectator."'^ 
Sul)sequently  Mr.  Thompson  was  instructed:  "There  having  lieen 

no  recognition  l)v  United  States  of  the  insurgents  as 
Limitation  of  insur- ,     ii-  ,.  ^\\  i     •  .  ^i     4.  *u  4. 

belligerents,  and  there  l)einir  no  pretense  that  the  port 
gent  operations.  '^      .  ... 

of  Rio  is  l)lockaded.  it  is  clear  that  if  an  American 
ship  anchored  in  the  harl>or  employs  barges  and  lighters  in  transferring 
her  cargo  to  the  shore  in  the  usual  way  and  in  so  doing  does  not  cross 
or  otherwise  interfere  with  Mejlo's  line  of  fire  and  he  .seizes  or  attempts 
to  seize  the  l)arges  or  lighters,  he  can  and  should  be  resisted.     You 

«  For.  Rel.  189.S,  4.>-16. 
^  For.  Rel.  189:^  .=>l-.52,  .%.  66-68 
<For.  Rel.  lS9:i,  .5:1 

'/  Telegram,  Mr.  c;re>'hain,  Sec.  of  State,  to  Mr.  Thonipson,  Oct.  25,  1893,  For.  Re7. 
1893,  63. 


§  "^^'l  HECOGKlTlOIf    OF    BELLIGERENCY. 


203 


will  deliver  or  send  a  copy  of  this  instruction  to  the  commander  of  the 

insurgents."  " 

"While  our  Government  recognizes  the  existence  of  war  Ix-tween  Brazil  and 
the  insurgents,  it  does  not  accord  to  the  latter  belligerent  rights.  It  is  not 
claimed  that  the  harbor  at  Rio  is  blockaded,  and  your  right  to  transfer 
merchandise  from  an  American  or  other  neutral  ship  anchored  there,  to 
the  shore,  is  clear,  provided  in  doing  so  you  do  not  cross  the  line  of  fire  or 
otherwise  interfere  with  the  military  operations  of  the  insurgents.  Barges 
and  lighters  thus  employed  will  doubtless  be  protected  by  our  naval  forces 
there  should  Mello  attempt  to  seize  them."  (^Mr.  Gresham,  Sec.  of  State, 
to  Messrs.  Lanman  &  Kemp,  Nov.  2,  1893,  194  MS.  Dom.  Let.  174.) 

November  6, 1893,  the  commanders  of  the  German,  English,  French, 
Portuguese,  American,  and  Italian  naval  forces  communicated  to 
Admiral  de  Mello  the  following  decision: 

"1.  They  do  not  recognize  the  right  of  the  insurgent  forces  to 
interfere  in  any  way  with  commercial  operations  in  the  bay  of  Rio  de 
Janeiro,  operations  which  should  be  allowed  to  be  accomplished  every- 
where except  in  the  actual  lines  of  tire  of  the  batteries  of  the  land 
fortifications. 

''In  con.sequence  they  have  decided  to  protect  merchandise,  not  onh^ 
on  })oard  their  countries'  vessels  or  those  that  put  themselves  under 
their  flag,  but  also  on  lighters,  barges,  and  other  means  of  maritime 
transport,  whatever  may  be  the  nationality  to  which  they  belong,  pro- 
vided the}^  be  emploj-ed  by  these  same  ships  in  commercial  operations. 

•'2.  In  order  to  avoid  all  disputes,  these  means  of  transportation  or 
their  tugs  shall  carry  at  their  prow  the  flag  of  the  country  under  whose 
protection  they  maj'  be. 

'•3.  The  commanders  of  the  foreign  naval  forces  strongly  hope  that 
these  measures  will  put  an  end  to  imfortunate  incidents  that  they 
would  find  it  necessaiy  to  repress."^ 

December  1,  1893,  de  niello  left  Rio  de  Janeiro  on  the  Aquidahan^ 

and  about  the  12th  of  the  same  month  the  command  of 

Action  of  Admiral  , ,  •    •  u  •  x*   i.u  j  i    i 

„    ^  the  remaining  ships  or  the  squadron  was  assumed  bv 

Benham.  ,  &         i  i  .  .      .         .    ' 

Admiral  Saldanha  da  Gama,  who,  besides  intimating 

an  intention  to  bombard  the  city,  announced  that  he  would  endeavor 

to  prevent  the  passage  of  goods  to  the  custom  house  or  to  the  shoie. 

Although  the  ''decision''  of  the  6th  of  November  was  not  withdrawn, 

it  seems  that  for  some  time  da  Gama  was  permitted  to  interfere  with 

the  landing  of  merchandise.^     On  the  29th  of  January,  1894.  however. 

Admiral  Benham,  who  had  lateh'  taken  command  of  the  United  States 

naval  forces,  gave  notice  of  his  intention  to  protect  all  American  ships 

proceeding  to  or  discharging  at  the  docks,  and  caused  an  insurgent 


«  Telegram,  Mr.  Gresham,  Sec.  of  State,  to  Mr.  Thompson,  Nov.  1, 1893,  For.  Rel. 
1893,  64. 

&For.  Rel.  1893,  95-96. 
cFor.  Rel.  1893,  121-122. 


204  states:    RECHiNITIOX    AND    CONTTNUTTY.  [§  TO. 

vessel,  whieli  had  tired  at  the  boat  of  an  Aineriean  ship,  to  abstain 
from  further  aets  of  molestation,  l)v  j(ivini(  evidence  of  his  purpose  to 
return  the  tire  and  sink  her,  if  she  persisted."  He  aeted  within  his 
instructions;  and  his  action,  which  seems  to  have  been  approved  by 
the  other  naval  conunanders.  induced  the  insurti^onts  to  abstain  from 
further  interference  with  commerce.'' 

*•  An  actual  condition  of  hostilities  existing",  this  Government  has  no 

desire  to  intervene  to  restrict  the  operations  of  either 
Position  of  United  .         -    -i  a   -^        ii-     i.'  j      j.      i.- 

party  at  the  expense  ot  its  ctiective  conduct  or  sys- 
tematic measures  against  the  other.  Our  principal 
and  obvious  duty,  apart  from  neutrality,  is  to  guard  against  needless 
or  illegitimate  interference,  l)v  either  hostile  party,  with  the  innocent 
and  legitimate  neutral  interests  of  our  citizens.  Interruption  of  their 
commerce  can  ])e  respected  as  a  matter  of  right  only  when  it  takes  one 
of  two  shapes — (nther  ])y  so  conducting  oti'ensive  and  defensive  opera- 
tions as  to  make  it  impossit>le  to  carry  on  commerce  in  the  line  of  reg- 
ular tire,  or  by  resort  to  the  expedient  of  an  announced  and  effective 
blockade. 

''Vexatious  interference  with  foreign  merchant  shipping  at  a  desig- 
nated anchorage,  or  with  the  lighterage  of  neutral  goods  between  such 
anchorage  and  a  designated  landing,  by  random  tiring  not  necessary 
to  a  regular  plan  of  hostilities  and  having  no  other  apparent  object 
than  the  molestation  of  such  commerce,  is  as  illegitimate  as  it  is  intol- 
erable. Hence  we  have  a  right  to  expect  and  insist  that  safe  anchor- 
age and  time  and  place  for  loading  and  unloading  be  designated,  if 
practica])le,  to  b(^  interru])ted  only  ])y  notice  of  actual  intention  to 
bombard,  or  by  notitication  and  etfective  enforcement  of  blockade. 

"The  insurgents  have  not  Ixhmi  recognized  as  belligerents,  and 
should  they  announce  a  l)l()ckade  of  the  jwrt  of  Kio  the  sole  test  of  its 
validity  will  be  theii-  ability  to  make  it  etl'ective.'' 

^Ir.  (Jrei^hain,  Sec.  of  State,   to  Mr.  Tlioiiiiison,   minister  to  Brazil,  .Tan.  11, 
1898,  For.  Kel.  ^Sm,  iti). 


"  "In  no  ca.«e  have  I  interfered  in  the  sli<i:htest  way  with  the  military  operation;*  of 
either  side  in  the  contest  now  <roin<i  on,  nor  is  it  my  intention  to  do  so.  *  *  * 
American  vessels  ninst  not  he  interfered  with  in  any  way  in  their  movements  in 
poinjz  to  the  wharves  or  about  the  harhor,  it  hein^'  understood,  however,  that  they 
mu.>*t  take  the  con.-ie<iuences  (if  gettiiiir  in  the  line  of  tire  where  legitimate  hostilities 
are  actually  in  progress.  *  *  *  I'ntil  lieliitrcriiit  ri<:hts  are  accorded  you,  you 
liave  no  rijrht  to  exerci.«e  any  authority  whatever  over  American  ships  or  property 
of  any  kind.  You  can  not  search  neutral  vessels  or  seize  any  portion  of  their  car- 
goes, even  though  they  he  within  the  class  which  may  he  clearly  defined  a.s  contra- 
l)and  of  war,  during  hostilities  between  two  in<lependent  governments.  The  forcible 
seizure  of  any  such  articles  by  those  under  your  command  \voul<l  be,  in  your  present 
status,  an  act  of  piracy."  (Admiral  Benham  to  Admiral  da  Gama,  January  30,  1894, 
For.  Kel.  1893,  122.) 

f^  For.  Rel.  1893,  117,  118,  120. 


§  ""l-]  KECOGNITION  OF  BELLIGEKENUY.  205 

Mr.  Greshain,  Feb.  5, 1894,  cabled  Mr.  Thomp.-ion  to  inform  Aihniral  daCiaina, 
who  liad  asked  for  the  recognition  of  the  in.-^ur<j;ent.<  as  l)elH<rerent.'<,  that 
sudi  recognition  was  "still  considered  by  the  President  as  not  being  ju.sti- 
fied  by  the  situation."  (For.  Rel.  189:5,  121.)  On  February  (i  Mr.  Thonii)- 
.son  reported  that  the  territorial  claims  of  the  insurgents,  who  professed 
to  hold  most  of  the  States  of  Rio  (Jrande  do  Sul,  Santa  Catharina  and 
Parana,  and  a  part  of  Sao  Paulo,  seemed  to  be  exaggerated;  that  they  held 
several  towns,  including  the  capital  of  Parana,  in  the  south,  Imt,  so  far  as 
he  was  advised,  had  not  absolute  control  of  any  State;  and  that,  owing  to 
dis.sensions  among  its  members,  their  jirovisional  government  was  not 
intact  and  was  not  improving  either  in  organization  or  in  effectiveness. 
(For.  Kel.  1898,  V26.  See,  also,  pp.  275-278.)  March  LS,  1894,  the  insur- 
gents at  Rio  unconditi(jnally  surrendered,  with  all  their  ships  and  munitions 
of  war,  da  Gama  and  a  number  of  his  officers  and  men  linding  asylum  on 
the  Portuguese  ships  of  war.    (For.  Rel.  J89:^>,  141-142.) 

13.  Semisovkkeic;n  State  and  Its  Sizeraix. 

S  71. 

The  question  of  bellio'erency  as  between  a  semi.sovereig'n  state  and 
its  suzerain  was  discussed  in  the  case  of  INIadagascar. 
When  hostilities  broke  out  in  1805,  the  relations  between 
France  and  the  island  were  regulated  by  the  treaty  l)etween  France 
and  the  ]Malagassy  Government  of  Dec.  17,  1885,  which  was  g-enerally 
considered  in  Europe  as  constituting  a  French  protectorate.  The 
British  Governuient  treated  the  Malagassies  not  as  belligerents,  but  as 
insurgents,  and  allowed  English  ships  to  transport  materials  of  war 
for  France.^' 

In  the  case  of  the  Transvaal,  however.  Great  Britain,  though  assert- 
ing rights  of  suzeraintv.  conceded  to  the  Republic  and 
The   South  African     ,    .         ,    ,.       ,  u;  i     it  i.     •    i  i.  'pi       t>  i  i- 

chunicd  tor  herself  belligerent  rights,      i  he  Ke])ublic, 
Republic.  j^  .-5  17 

in  its  idtimatumof  Oct.  1»,  lS!t!t.  declared  that  it  would 
regard  the  failure  of  (ireat  Britain  immediately  to  comply  with  ccM'tain 
demands  '"as  a  formal  declaration  of  war."  Thi>  l?riti.-^h  Govermuent 
deemed  these  demands  '"impossible  to  discuss,"  and  referred  to  the 
Transvaal's  "declaration  of  war."''  The  existence  of  a  state  of  war 
was  notitied  by  Great  Britain  to  foreign  govermnents,  and  rights  of 
belligerency,  on  sea  as  well  as  on  land,  Averc  exei'cised  and  conceded.'" 

"  Rivier,  Principes  du  Droit  des  Gens,  I.  79-93. 

'>  South  African  Republic,  1899,  C— 9530,  pp.  67-70. 

'Correspondence  respecting  the  action  of  Her  Majesty'!^  naval  authorities  with 
regard  to  certain  foreign  ves.«els,  Africa,  No.  1  (1900);  Correspondence  in  reference 
to  the  altuse  of  the  white  flag,  April,  1900,  Cd.  122. 


206  states:  recognition  and  continuity.  [§  72. 

v.  acts  falling  short  of  recognition. 

1.  Of  Nkw  States. 

§  72. 

As  there  i-s  no  exclusive  mode  by  which  recognition  is  given,  and  as 

governments  are  sometimes  obliged  b}^  necessity  or 
Acts    and   implica-     ,     .  .  j.      i     i  i  •    i.  •.! 

obvious  convenience  to  hold  intercourse  with  commu- 
tions. 

nities  whose  independence  it  would  not  be  proper  to 
acknowledge,  the  question  whether  recognition  should  be  predicated 
of  a  particular  act  may  depend  upon  intention.  Holtzendorff  mentions 
the  surrender  of  criminals  to  a  new  community  as  an  act  of  recogni- 
tion/' and  it  is  quite  conceivable  that  it  might  be  so  done  as  to  create 
such  an  inference;  but,  as  Hall  justly  observes,^  it  is  not  clear  "wh}^ 
the  surrender  of  an  ordinary  criminal  to  a  de  facto  government,  in  the 
possession  of  regular  courts,  need  more  necessarily  constitute  recog- 
nition than  does  recognition  of  belligerency,''  both  acts  merel}^  imply- 
ing the  acknowledgment,  on  grounds  of  political  or  social  convenience, 
of  a  de  facto  exercise  of  jurisdiction.  "'  It  is,  of  course,  direct  recogni- 
tion to  publish  an  acknowledgment  of  the  sovereignty  and  independence 
of  a  new  power.  It  is  direct  recognition  to  receive  its  ambassadors, 
ministers,  agents,  or  commissioners,  officially."^  The  "official  recep- 
tion of  diplomatic  agents  accredited  by  the  new  state,  the  dispatch  of 
a  minister  to  it,^or  even  the  grant  of  an  exequatur  to  its  consul,  affords 
recognition  by  necessary  implication."'^  But  neither  the  sending  out 
to  such  state  of  consuls,  agents  of  commerce,  or  persons  to  obtain 
information,  nor  the  reception  of  its  representatives,  if  these  things 
be  done  unoffi(;ially,  constitutes  recognition.  "In  1823  consuls  were 
appointed  l)V  Great  liritain  to  the  South  American  Republics  and  the 
various  governments  were  informed  that  the  appointments  had  been 
made  for  the  protection  of  British  subjects,  and  for  the  acquisition  of 
information  which  might  load  to  the  establishment  of  friendly  rela- 
tions. The  various  consuls  took  up  their  appointments  and  acted,  but 
were  not  gazetted.  The  earliest  recognition  [by  Great  Britain]  took 
place  in  1825."'' 

The  diplomatic  agents  of  the  I'nited  States  to  France  were  permitted 

Unofficial  inter-  ^^  reside  at  Paris  and  to  hold  informal  intercourse  with 

course;    the  the    Government    before    the    independence    of    the 

American   Revo-  United  States  was  recognized.    The  case  was  the  same 

^°*^°°-  in  the  Netherlands.     Arthur  Lee  was  stopped  by  the 

Spanish  Government  when  on  his  way  to  Madrid  in  the  spring  of  1777, 

but  afterwards  Mr.  »7ay  was  allowed  to  reside  at  Madrid,  it  being 

«Handbuch,  I.  §  8. 

&Int.  Law,  4th  ed.  9:}. 

'•Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  May  21,  1861,  Dij).  Cor.  1861,  73. 

'Hlall,  Int.  Law,  <•:! 

^llall,  Int.  Law,  94. 


>;  72.]  ACTS    FALLING    SHORT    OF    RECOGNITION.  207 

understood  that  he  was  not  "to  assume  a  formal  character,  which  must 
depend  on  a  public  acknowledgment  and  future  treat}. '^'  For  several 
weeks  during  the  summer  of  1777.  Arthur  Lee  was  permitted  to  reside 
at  Berlin  as  a  private  individual  and  to  hold  informal  relations  with 
Count  Schulenberg.  the  Prussian  minister  of  foreign  affairs. ''  In  the 
autumn  of  the  same  year,  however.  Count  Schulenberg  intimated  that 
William  Lee  should  not  come  to  Berlin,  and  that  no  conununication 
would  be  held  with  him  if  he  did,'  Mr.  Lee  then  went  to  Vienna,  but 
was  not  received  there."'  Mr.  Dana  resided  at  St.  Petersburg  for  two 
3'ears  as  a  private  individual:  he  left  in  August,  1783,  having  been 
unable  to  obtain  anything  beyond  an  informal  interview  with  the 
minister  for  foreign  affairs  in  the  preceding  Api-il.*^  Mr.  Izard  was 
dissuaded  by  the  minister  of  the  Grand  Duke  at  Paris  from  proceeding 
to  Tuscany.' 

"But  while   this   state  of   things  continues,   an  entire  equality  of 

treatment  of  the  parties  is  not  possible.     There  are 

Kevolution  in  Span-     .  •   •         £  ^u        \  ij^i  ^     . 

ish  America        circumstances  arising  from  the  nature  of  the  contest 

itself  which  produce  unavoidable  inequalities.  Spain, 
for  instance,  is  an  acknowledged  sovereign  power,  and,  as  such,  has 
ministers  and  other  accredited  and  privileged  agents  to  maintain  her 
interest  and  support  her  rights  conformably  to  the  usages  of  nations. 
The  South  Americans,  not  being  acknowledged  as  sovereign  and  inde- 
pendent states,  can  not  have  the  benelit  of  such  officers.  We  consider 
it,  however,  as  among  the  obligations  of  neutrality  to  obviate  this 
inequality,  as  far  as  may  be  practicable,  without  taking  a  side,  as  if  the 
question  of  the  war  was  decided.  We  listen,  therefore,  to  the  repre- 
sentations of  their  deputies  or  agents,  and  do  them  justice  as  much  as  if 
they  were  formally  accredited.  By  acknowledging  the  existence  of  a 
c/r//  icar,  the  right  of  Spain,  as  undt^'dood  by  herself,  is  no  doubt 
atiected.  She  is  no  longer  recognized  as  the  sovereign  of  the  provinces 
in  revolution  against  her.  Thus  far  neutrality  itself  operates  against 
her,  and  not  against  the  other  party.  This  also  is  an  inequality  aris- 
ing from  the  nature  of  the  struggle,  unavoidabl(\  and  therefore  not 
incompatible  with  neutrality." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Rush,  min.  to  Knglan<l,  Jan.  1,  1819,  MS.  Inst, 
to  U.  S.  ministers,  VIII.  296. 

The  message  of  President  Monroe  of  March  8,  1822,  transmitting  to  the  Hoa.«e 
of  Representatives,  in  response  to  its  resolution  of  the  30th  of  the  preceding 
January,  corresi)ondence  of  tiie  agents  of  the  United  States  with  the 
Spanish-American  governments  and  of  the  agents  of  the  latter  with  the 
Secretary  of  State  of  the  United  States,  and  proposing  the  recognition  of 
the  indei)endence  of  those  governments,  is  printed  in  the  Br.  and  F"or. 
State  Papers,  IX.  (1821-1822)  369,  and  in  Am.  State  Pap.  For.  Rel.  IV.  818. 

a^Vharton,  Dip.  Cor.  Am.  Rev.  I.  292;  III.  51.'),  516. 
''Id.  II.  333,  335,  369. 
Md.  II.  432.  4.58. 
'Md.  II.  715. 

t  Id.  IV.  679,  696,  710;  V.  209;  VI.  .54,  275,  392,  502,  636. 
/  Id.  II.  455. 


208  states:  kecognitlon  and  continuity.  [§  72. 

The  State  of  Yucatan  not  havinjv  l)eon  ••  recognized  by  an}^  act  of 

this  (xovernnient,  it  must  still  1)0  considered  as  a  corn- 
Revolution  in  Yuca-  ,  i.      i«  il       AI        ■  T>  1  !•      J"  11 

ponent  part  oi  the  Mexican  Kepublic  tor  all  purposes 
connected  with  the  execution  of  the  law  of  the  United 
States  to  which  you  refer.  If.  however,  the  ^Mexican  consul  at  New 
Orleans  should  refuse  to  comply  witii  the  requirements  of  that  law  in 
respect  to  any  vessel  from  Yucatan,  your  Department  mig-ht,  without 
giving  just  cause  for  complaint  to  his  (lovernment  upon  proof  of  that 
fact,  take  the  same  course  as  is  customary  in  regard  to  vessels  arriving 
at  our  ports  where  there  is  no  Mexican  consul,  or  in  regard  to  the  ves- 
sels of  such  nations,  whether  recognized  by  us  or  not,  as  have  no  con- 
suls in  the  ITnited  States.  The  i)apers  which  accompanied  your  letter 
are  now  returned." 

Mr.  We1>j^tfr,  Sec  of  State,  to  :Mr.  Forward,  Si'c.  of  the  Treasury,  Dec.  2,  1841, 
82  :\IS.  Doin.  Let.  111. 

Mr.  Seward,  in  his  insti'uctions  to  Mr.  Adams,  No.  10,  May  21, 

1801,  took,  in  relation  to  "proposed  unofficial  inter- 
The  Confederate  ,     ,  ^-\      ^y    •4.-  -u  f^  4-        j  i.\ 

course,  hetween  tlie  liritish  (.xovernment  and  the  mis- 
states. .         .         .    1     .  <«    1      p  11      • 

sionaries  of  the  insurgents,    the  following  position: 

"Such  intercourse  would  be  none  the  less  hurtful  to  us  for  being 
called  unofficial,  and  it  might  be  even  more  injurious,  because  w-e 
should  have  no  means  of  knowing  what  points  might  be  resolved  by 
it.  *  *  *  It  is  left  doubtful  here  whether  the  proposed  unofficial 
intercour.se  has  yet  actually  l)egun.  You  will,  in  any  event,  desist 
from  all  intercourse  whatever,  unofficial  as  well  as  official,  with  the 
British  Government,  so  long  as  it  shall  continue  intercourse  of  either 
kind  with  the  domestic  enemies  of  this  country."^' 

Mr.  Adams,  who  was  directed  not  to  read  or  exhibit  his  instructions 
to  the  British  s(>cretarv  of  state,  but  to  disclose  the  positions  taken  in 
them  as  occasion  might  recjuii-e.  ()])served,  in  an  interview  with  Earl 
Rus.sell.  June  12,  LSfU,  that  the  contiiuied  stay  of  the  Confederate 
commissioners  in  London,  "and  still  more  the  knowledge  that  they 
had  ))een  admitted  to  more  or  less  interviews  with  his  lordship,  was 
calculated  to  excite  uneasiness."'  and  that  it  had  in  fact  already  given 
great  dissatisfaction  to  his  (rovernnuMit.  j\lr.  Adams  continues  his 
report  of  the  interview  as  follows:  '"  I  added,  as  moderately  as  I  could, 
that  in  all  frankness  any  further  })rotraction  of  this  relation  could 
scarcely  fail  to  ])e  viewed  by  us  as  hostile  in  spirit,  and  to  re(|uire 
some  corresponding  action  accordingly. 

"His  lordship  then  reviewed  the  course  of  Great  Britain.  He 
explained  the  mode  in  which  they  had  consulted  with  France,  prior  to 

«Dip.  Cor.  1861,  72.  See,  as  to  the  refu.«al  of  the  I'nited  States,  in  July,  1891,  to 
receive  representativeH  of  tlie  C'onjrresHionalists  in  Chile  who  had  not  been  recog- 
nized as  belligerents,  For.  Kel.  1891,  14G,  317. 


§  72.]  ACTS    FALLIXCI    SHORT    OF   RECOGNITION.  209 

an}'  action  at  all.  as  to  the  reception  of  the  deputation  from  the  so- 
called  Confederate  States.  It  had  been  the  custom  both  in  France  and 
here  to  receive  such  persons  unofficially  for  a  long  time  l>ack.  Poles, 
Huno-arians.  Italians,  etc..  etc..  had  been  allowed  interviews  to  hear 
what  they  had  to  say.  But  this  did  not  imply  recognition  in  their 
case  any  more  than  in  ours.  He  added  that  he  had  seen  the  gentle- 
men once  some  time  ago.  and  once  more  some  time  since;  he  had  no 
expectation  of  seeing  them  any  more.     *     *     * 

"I  shall  continue  my  relations  here  until  I  discover  some  action 
apparently  in  conflict  with  it.  or  receive  specific  orders  from  the  De- 
partment dictating  an  opposite  course.'"" 

In  a  note  to  Mr.  Adanis.  X()V(Miil)er  2»),  1S61.  Earl  Russell  said: 

"Her  Majesty's  Government  hold  it  to  be  an  undoubted  principle 
of  international  law.  that  when  the  persons  or  the  property  of  the 
subjects  or  citizens  of  a  state  are  injured  l)v  a  dr  ft/rfo  government, 
the  state  so  aggrieved  has  a  right  to  claim  from  the  '/r  fartn  govern- 
ment redress  and  reparation;  and  also  that  in  cases  of  apprehended 
losses  or  injury  to  their  subjects  states  may  lawfully  enter  into  com- 
munication with  de  facto  governments  to  provide  for  the  temporary 
security  of  the  persons  and  property  of  their  subjects.     *     *     * 

''It  ma}'  be  necessary  in  future,  for  the  protection  of  the  interests 
of  Her  Majesty's  subjects  in  the  vast  extent  of  country  which  resists 
the  authority  of  the  United  States,  to  have  further  communications 
both  with  the  central  authority  at  Richmond  and  Avith  the  governors 
of  the  separate  States,  and  in  such  cases  such  communications  will 
continue  to  be  made,  but  such  conmiunications  will  not  imply  any 
acknowledgment  of  the  Confederates  as  an  independent  state."* 

In  a  despatch  to  Mr.  Seward.  September  13,  18H2.  Mr.  Dayton, 
United  States  minister  at  Paris,  adverts  to  the  frequent  references  in 
the  press  to  conferences  between  Mr.  Slidell,  as  diplomatic  agent  of 
the  Confederate  States,  and  M.  Thouvenel,  French  minister  of  for- 
eign attairs.  Mr.  Dayton,  in  conversation  with  M.  Thouvenel,  asked 
that  "'if  any  propositions  or  suggestions  had  come  or  should  come, 
from  any  source,  affecting  the  interests  of  the  United  States,  and 
which  should  be  entertained  or  considered  by  the  French  Govern- 
ment." he  might  be  advised  of  them.  M.  Thouvenel.  says  Mr.  Day- 
ton, ••immediately  said  that  he  had  seen  Mr.  Slidell  once,  when  he 
arrived  in  Paris,  about  which  wi^  knew  everything;  that  afterwards, 
about  the  time  that  Mr.  Mason  hist  applied  to  Earl  Russ(>ll.  and  for  a 
like  purpose,  Mr.  Slidell  applied  to  him;  that  these  were  the  only 
occasions  upon  which  he  had  seen  Mr.  Slidell,  and  h(^  much  doubted 
if  the  latter  felt  greatly  flattered  by  his  reception."'' 

«Mr.  Adams  to  Mr.  Seward,  June  14,  1861,  Dip.  Cor.  1881,  87,88;  '•:Mes.<r!^.  Yancey, 
RoHt,  and  Mann  were  not  again  received  at  tlie  foreign  office."  (Adanis,  Life  of 
Charley  Francis  .\damp,  198. ) 

''Dip.  Cor.  1862,  8-9.  '"Dip.  Cor.  1862,  :iS9. 

H.  Doc.  551 14 


210  states:  recognition  and  continuity.  [§  72. 

Mr.  Seward  contimiod  to  affirm  that  tho  informal  reception  of 
Confedemte  emissaries  by  the  officials  of  foreiofn  trovernments  was 
improper;  but.  while  he  tfoverned  his  own  conduct,  so  far  as  unofficial 
missions  from  other  countries  were  concerned.  ]>y  the  principle  which 
he  advocated,  he  left  untried  the  policy  of  retaliatory  nonintercourse 
proposed  in  his  instruction  No.  lo  to  Mr.  Adams.  Writing  to  Mr. 
Bigelow.  then  United  States  minister  to  France.  March  13.  18»>5.  Mr. 
Seward  narrated  his  refusal  to  admit  to  an  "informal  interview"  an 
agent  of  Maximilian,  on  the  ground  that  it  was  the  "settled  position" 
of  the  United  States  "to  hold  no  interview.  pul>lic  or  private,  with  per- 
sons coming  from  any  country  other  than  the  agents  duly  accredited 
by  the  authority  of  that  country  which  is  recognized  by  this  Govern- 
ment:" and  he  added.  "This  Government  has  insisted  that  the  opposite 
position,  which  to  some  extent  is  held  in  other  states,  and  under  which 
Mason.  Slidell.  and  Mann,  insurgent  emissaries  from  this  country,  are 
admitted  to  unofficial  conferences,  is  unfriendly  and  injurious  to  the 
United  States.  Thus  we  govern  ourselves  in  our  intercourse  with 
other  states  by  the  principles  that  we  claim  ought  to  govern  them  in 
their  relations  with  the  United  States."" 

In  ls»i8  Mr.  Davis  sent  to  the  Pope,  through  Mr.  A.  Dudley  Mann. 

who  was  a  member  of  the  commission  sent  abroad  to 

^   „  secure  the  recognition  of   the  Confederate  States   bv 

ness  the  Pope.  '^  .     i        i        <•  •    * 

Luroi>ean  powers,  a  letter  ot  thanks  for  the  feeling 

shown  l)v  His  Holiness  in  certain  open  communications  to  the  arch- 
bishops of  New  York  and  New  Orleans,  urging  all  possible  efforts 
toward  the  restoration  of  peace.  Mr.  Mann  was  instructed  to  take 
the  letter  to  Rome,  and  to  that  end  was  commissioned  as  a  special 
envoy  to  the  Holy  See.  He  reached  Home  November  9.  1S63.  and 
obtaining,  through  the  l^lpal  Secretary  of  .State.  Cardinal  Antonelli, 


"Dip.  Cor.  llSb.^,  part  :>,  i>.  'ATS.  .<w  also  H.  Ex.  Jhtc.  20.  .39  Cong.  1  ses.«. ;  Dana's 
Wheaton,  note  41,  §  TH,  p.  l.]l;  Mr.  Blaine,  Stt-.  of  State,  to  Mr.  Fish,  April  o,  1881, 
MS.  In.«t.,  Switzerland,  hoMingthat  tlie  rt'(i«_'nitii>n  of  a  i>er>on  asa  'Apolitical  agent" 
of  Switzerland  <li<l  not  invest  him  with  a  <liplomatic  character.  Wharton,  Int.  Law 
Digest,  I.  514,  referring  to  Mr.  ."^ewarir.-^  i^isition,  say.-^:  ''But  when  a  Ijelligerent  is 
recognize<l  a.-^  such,  this  iinplie.-^  an  intercourse,  at  lea.'^t  Ix'tween  agents,  in  reference 
to  terms  of  l>eliigerency.  This  intercourse  may  be  very  informal,  and,  when  between 
belligerents  who  are  i)arties  to  a  civil  war,  may  for  a  time  l>e  limited  to  negotiations 
for  exchange  of  ]>risonei-s  ami  for  cognate  objects.  But,  as  in  the  case  of  the  late 
civil  war  in  the  Cnite"!  States,  the  ."Sovereign  ag-ainst  whom  the  insurrection  is  directefl, 
will,  from  the  necessity  of  the  ca.<e,  hear  informally  and  unothcially  agents  from  l)el- 
ligerent  insurgents  as  to  terms  of  surrender."  In  his  Diplomatic  Correspondence  of 
the  American  Revolution,  II.  370,  the  same  eminent  author,  in  discussing  the  atti- 
tude of  Fre<lerick  the  Great  toward  the  mission  fif  Arthur  Lee  to  Berlin  in  1777, 
goes  further  an<l  takes  the  grouml  that  insurgents  who  have  been  recognizl^l  a<  l)el- 
ligerentsare  "entitU'il  to  have  agents"  near  the  governments  by  which  they  have 
l>een  so  rectignized. 


§72.]  ACTS    FALLING    SHORT    OK    RECOGNITION.  211 

an  interview  with  the  Pope,  read  him  the  letter.  His  Holines.s  prom- 
ised to  write  a  reply  ''of  such  a  character  that  it  may  ])e  published 
for  general  perusal."  The  reply,  translated  from  the  Latin,  is  as 
follows: 

••Illustrious  and  honorable  sir,  greeting:  We  have  received  with 
fitting  kindness  the  gentleman  sent  b}'  Your  Excellency  to  deliver  us 
your  letters,  bearing  date  the  23d  of  September  last.  We  experienced 
indeed  no  small  pleasure  when  we  learned  from  the  same  gentleman 
and  the  letters  of  Your  Excellency  with  what  emotion  of  jo}^  and 
gratitude  toward  us  you  were  affected,  illustrious  and  honorable  sir, 
when  you  were  tirst  made  acquainted  with  our  letters  to  those  revei'end 
brethren.  John,  Archbishop  of  New  York,  and  John.  Archbishop  of 
New  Orleans,  written  on  the  18th  of  October  of  last  year,  in  which  we 
again  and  again  urged  and  exhorted  the  same  reverend  brethren  that, 
as  behooved  their  distinguished  piety  and  their  episcopal  charge,  they 
should  most  zealously  use  every  effort,  in  our  name  also,  to  bring  to 
an  end  the  fatal  civil  w^ar  that  had  arisen  in  those  regions,  and  that 
those  people  of  America  might  attain  mutual  peaceand  concord  and  be 
united  in  mutual  charity.  And  very  grateful  it  was  to  us,  illustrious 
and  honorable  sir,  to  perceive  that  you  and  those  people  were  animated 
with  the  same  feeling  of  peace  and  tranquillity  which  we  so  earnestly 
inculcated  in  the  letters  mentioned  as  having  been  addressed  to  the 
aforesaid  reverend  brethren.  And  would  that  other  people  also  of 
those  regions  and  their  rulers,  seriously  considering  how  grievous  and 
mournful  a  thing  is  intestine  war.  would  be  pleased,  with  tranquil 
minds,  to  embrace  and  enter  upon  counsels  of  peace.  We  indeed  shall 
not  cease  with  most  fervent  prayers  to  beseech  and  pray  God,  the 
Omnipotent  and  All-good,  to  pour  out  the  spirit  of  Christian  charity 
and  peace  upon  all  those  people  of  America,  and  deliver  them  from 
the  evils  so  great  with  which  they  are  afflicted. 

''And  of  the  most  merciful  Lord  of  Compassion  Himself  we  likewise 
pray  that  He  may  illume  your  excellency  with  the  light  of  His  grace, 
and  may  conjoin  you  in  perfect  love  to  ourself. 

"Given  at  Rome,  at  St.  Peter's,  December  8,  in  the  year  1S03,  and 
of  our  pontificate  the  eighteenth. 

••Pius  PP.  IX." 

See  an  article  entitled  "Relics  of  the  Confederacy  in  Wat^hington,"  by  Mr. 
G.  M.  Jacoh)S,  in  the  Louisville  Courier- Journal,  May  .SO,  15)00.  The  origi- 
nal letter  is  in  the  miscellaneous  division  of  the  Treasury  Dejjartnient. 
3Ir.  Jacobs,  in  the  article  in  question,  says:  "Mr.  ^lann  accepted  the  letter 
as  a  positive  recognition  of  the  Confederate  government,  and  inunediately 
telegraphed  congratulations  to  Judah  P.  Benjamin,  secretary  of  state.  In 
transmitting  the  document  t(^  President  Davis,  he  wrote:  'This  letter  will 
grace  the  archives  of  the  executive  office  in  all  coming  time.  It  will  live, 
too,  f<jrever  in  story  as  the  production  of  the  first  potentate  who  formally 
recognized  your  official  position  and  acc(jrde<l  to  one  of  the  diiilomatic 
representatives  of  the  Confederate  States  an  audience  in  an  established 
eourt  palace  like  that  of  St.  James  or  the  Tuileries,' 


212  states:  recognition  and  continuity.  [§  72. 

"Ycait!  later,  ^Ir.  Mann  wrote:  'Even  after  this  lapse  of  time  I  can  not  help 
but  think  how  niajestit-  was  the  conduct  of  the  Government  of  the  pon- 
tilical  States  in  its  bearing  toward  me  when  contrasted  with  the  sneaking 
subterfuges  to  which  the  other  European  governments  had  recourse  in 
order  to  evade  intercourse  with  our  commissioners.' 

"How  many  of  the  other  leaders  of  the  Confederacy  interpreted  the  Pope's 
letter  in  the  same  way  is  not  definitely  known.  Mr.  Davis  left  no  official 
statement  of  his  opinion  on  the  subject.  Mr.  Benjamin,  however,  in  a 
communication  to  Mr.  Mann,  maintained  that  as  a  recognition  of  the  Con- 
federate States  tiie  letter  was  of  little  value,  being  only  an  inferential  rec- 
ognition, unconnected  with  j)olitical  action  or  the  regular  establishment 
of  diplomatic  relations,  and  that  his  address  to  Mr.  Davis  as  president  of 
the  Confederate  States  was  merely  a  fornmla  of  courtesy  to  his  correspond- 
ent, and  not  a  political  acknowledgment  of  the  fact." 

That  Mr.  Benjamin's  interj^retation  of  the  letter  was  correct  is  shown  by  state- 
ments made  by  Cardinal  Antonelli  to  Mr.  King,  minister  of  the  United 
States  to  the  papal  States,  by  which  it  appears  that  the  action  of  his  holi- 
ness was  free  from  all  political  design,  and  was  intended  merely  as  an 
expression  of  his  wishes  for  the  restoration  of  peace  to  the  people  of  the 
United  States.  (Mr.  King  to  Mr.  Seward,  Sec.  of  State,  Jan.  3,  Jan.  15, 
March  19,  ]a4>3,  MSS.  Dept.  of  State;  Mr.  Seward,  Sec.  of  State,  to  Mr. 
King,  Feb.  9  and  April  G,  1863,  MS.  Inst.  Papal  States,  1.  69,  72. ) 

The  South  Africiui  Kepiiblic,  though  classed  as  a  semi-sovereign 

state."     maintained     diplomatic     relations.      Great 

Delegation    of    the  B^.i^.^j,     tj,^  suzerain  power,  had  at  Pretoria  a  diplo- 

South  African  Re-  .  ,  .   ,        '^  .  .  ^ 

^jj.jjg  matic  agent,''  a  title  sometmies  given  to  representa- 

tives to  semi-sovereign  states;  and  Portugal  a  charge 
d'affaires.  The  Repul^lic,  on  the  other  hand,  sent  to  Europe  in  1898 
Dr.  W.  J.  Leyds.  who  was  accredited  as  envoy  extraordinary  and 
minister  plenipotentiary  to  various  courts,  and  who  was  so  received  at 
Paris  and  The  Hague,  where  he  had  permanent  offices.'' 

The  relations  thus  maintained  were,  it  is  needless  to  .say,  conducted 
impliedly  if  not  expressly  under  the  limitations  of  the  London  conven- 
tion of  18S4,  by  which  all  treaties  concluded  by  the  Republic,  except 
with  the  Orange  Free  State,  were  subject  to  the  veto  of  Great  Britain. 
By  its  idtimatum  and  declaration  of  war  of  October  9,  1899,  however, 
the  Republic  impliedly  declai-cd  itself  independent,  saying  that  it  con- 
sidered the  presence  of  the  l^ritish  military  force  near  its  borders  "as 
a  threat  against  the  independence  of  the  South  African  Repul)Iic."'^ 
The  idea  of  entire  independence  was  afterwards  more  clearly  expressed 
by  the  Presidents  of  the  South  African  Republic  and  the  Orange  Free 
State,  who,  in  their  message  to  Lord  Salisbury,  of  March  5,  1900, 
declared  that  the  war  was  "undertaken  solely  as  a  defensive  measure 

«  Kivier,  Principes  du  Droit  des  Gens,  I.  84;  supra,  p.' 28. 

''The  Statesman's  Year  Book,  1899,  p.  1003. 

'■  Almanach  de  Gotha,  1900,  pp.  793,  990. 

'/Blue  Book,  South  African  Repul)lic,  October,  1899,  C— 9530. 


^  72.]  ACTS    FALLING    SHOET    OF    RECOGlSriTION.  213 

to  safeguard  the  threatened  independence  of  the  South  African  Repub- 
lic;" that  it  was  "only  continued  in  order  to  secure  and  safeguard 
the  incontestable  independence  of  both  Republics  as  sovereign  inter- 
national states,"  and  to  assure  immunity  to  British  subjects  who  had 
taken  part  with  them  in  the  war;  and  that  "on  these  conditions,  but  on 
these  conditions  alone,"  were  they  "desirous  of  seeing  peace  reestab- 
lished in  South  Africa."'* 

In  furtherance  of  the  cause  thus  defined,  certain  delegates  were  sent 
abroad,  for  the  purpose,  as  it  was  understood,  of  seeking  both  recog- 
nition and  intervention.  In  P^urope,  prior  to  their  coming  to  the 
United  States,  they  were  received  at  The  Hague,  first  by  the  minister 
of  foreign  afl'airs  and  then  by  the  Queen.  They  arrived  in  Washing- 
ton, May  12,  1900.  On  the  21st  of  the  month  the  Department  of  State 
gave  out  a  statement,  the  first  paragraph  of  which  reads  as  follows: 

"  Messrs.  A.  Fischer,  C.  H.  Wessels,  and  A.  D.  W.  Wolmarans, 
the  delegates  in  this  country  of  the  South  African  Republics,  called 
to-day  by  appointment  nt  the  State  Department.  They  were  cordially 
received,  and  remained  with  the  Secretary  of  State  for  more  than  an 
hour.  The\'  laid  before  the  Secretary  at  much  length  and  with  great 
energy  and  eloquence  the  merits  of  the  controversy  in  South  Africa 
and  the  desire  of  the  Boer  Republics  that  the  United  States  should 
intervene  in  the  interest  of  peace  and  use  its  influence  to  that  end  with 
the  British  Government."'^ 

On  the  following  morning  the  delegates  were  received  by  President 
McKinley  at  the  Executive  Mansion,  the  President's  secretarv  being 
the  only  other  person  present  at  the  interview.  It  was  afterwards 
announced  by  the  press  that  the  President  had  confirmed  the  views 
set  forth  in  the  reply  of  the  Secretary  of  State. 

When  the  delegates  arrived  in  Washington  an  announcement  was 
made  in  their  behalf  through  the  press  that  they  bore  credentials  as 
envo3's  extraordinary  and  ministers  plenipotentiary  from  the  Boer 
Republics,  and  the  inscriptions  on  their  cards  so  indicated.  Their  cre- 
dentials, however,  were  not  presented,  and  their  reception  by  the 
President  and  the  Secretar}'  of  State  was  altogether  personal  and 
unofficial.''     Thev  afterwards  travelled  extensivelv  in  the  Inited  States 


«  Africa,  No.  2  (1900).  Lord  Salisbury,  in  his  acknowledgment  of  the  message, 
March  ]1,  1900,  quoted  the  phrases  "incontestable  independence"  and  "sovereign 
international  states"  as  the  text  of  his  reply. 

''The  statement  then  sets  forth  the  reply  of  Mr.  Hay,  Secretary  of  State,  which  is 
given  in  full  under  the  head  of  Mediation. 

c  May  23, 1900,  thedelegates  were  entertained  by  ]Mr.  Hay,  personally  and  unoflicially, 
at  limcheon,  it  being  his  desire,  as  intimated  in  the  public  prints,  to  show  apprecia- 
tion of  the  courtesies  of  the  Boer  people  to  his  son,  Mr.  Adelbert  Hay,  United  States 
consul  at  Pretoria. 

The  delegates  at  no  time  offered  to  present  their  credentials,  nor  was  the  subject  in 
any  way  referred  to.  (Mr.  Hay,  Secretary  of  State,  to  Mr.  Breen,  Nov.  2,  1901,  248 
MS.  Dom.  Let.  613. ) 


214  states:  becogkitiok  and  contikuity.  [§72. 

uiul  held  pul)lic'  inooting^s,  appealing  to  public  opinion  and  invoking  aid 
for  thoir  cause." 

On  May  :^1.  lt«>(>.  the  Senate  hy  a  vote  of  36  to  21  adopted  a  motion 
to  lay  on  tlu>  tal)le  a  resolution  to  extend  the  privileges  of  the  floor  to 
the  delegates  as  connnissioners  of  the  South  Af  ri<'an  Republics.  On  the 
29th  of  May  the  same  l)ody,  ])v  a  vote  of  40  to  20,  decided  to  refer  to 
the  C'onnnittee  on  Foreign  Relations  a  resolution  of  sympath}'  with 
those  Republics.'' 

'"As  a  crisis  is  approaching  which  must  produce  great  changes  in 

the  situation  of  Spanish  America,  and  may  dissolve 

Special  agents:   to  altogether  its  colonial  relations  to  Europe,  and  as  the 

geographical  position  of  the  United  States,  and  other 
and  Greece.  »toi  .  ^         .  .,  ... 

obvious  considerations,  give  them  an  intimate  interest 

in  whatever  may  affect  the  destiny  of  that  part  of  the  American  con- 
tinent, it  is  our  duty  to  turn  our  attention  to  this  important  subject, 
and  to  take  such  steps,  not  incompatible  with  the  neutral  character 
and  honest  policy  of  the  United  States,  as  the  occasion  renders  proper. 
With  this  view  you  have  been  selected  to  proceed,  without  delay,  to 
Buenos  Ayres.  You  will  make  it  your  object,  wherever  it  may  be 
proper,  to  diffuse  the  impression  that  the  United  States  cherish  the  sin- 
cerest  good  will  towards  the  people  of  Spanish  America  as  neighbors, 
as  belonging  to  the  same  portion  of  the  globe,  and  as  having  a  mutual 
interest  in  cultivating  friendly  intercourse;  that  this  disposition  will 
exist,  whatever  may  be  their  internal  system  or  European  relation, 
with  respect  to  which  no  interference  of  any  sort  is  pretended,  and 
that,  in  the  event  of  a  separation  from  the  parent  country,  and  of  the 
establishment  of  an  independent  system  of  national  government,  it  will 
coincide  with  the  sentiments  and  polic}'  of  the  United  States  to  pro- 
mote the  most  friendly  relations,  and  the  most  lil)eral  intercourse, 
between  the  inhabitants  of  this  hemisphere,  as  having  all  a  common 
interest,  and  as  lying  under  a  common  obligation  to  maintain  that  sys- 
tem of  peace,  justice  and  good  will,  which  is  the  only  source  of  happi- 
ness for  nations. 

"Whilst  you  inculcate  these  as  the  principles  and  dispositions  of 
the  United  States,  it  will  ])e  no  less  proper  to  ascertain  those  on  the 


""Messrs.  Wessels  and  Wolmarans  to-<lay  visited  Mr.  Roosevelt  in  order  to  pay 
their  respects  to  him  and  to  bid  him  farewell. 

"In  an  interview  to-day  the  Boer  delegates  said  that  they  desired  particularly  to 
make  it  known  that  they  neither  asked,  desired,  nor  expected  intervention  from  any 
country.  What  they  wanted,  and  what  they  had  laid  before  the  American  Govern- 
ment, was  a  re<iuest  that  civilized  warfare  might  be  a.«sured  in  South  Africa.  They 
had  not  suggestetl  any  plan  for  assuring  it.  .  .  .  Tliey  declared,  in  conclusion, 
that  Mr.  Kruger  was  not  seeking  intervention  in  Europe."  (London  Time.s,  weekly, 
March  14,  1902,  p.  162,  col.  4.) 

'>  See,  as  to  the  request  of  the  South  African  Republics  for  the  intervention  of  the  United 
States,  and  the  communication  of  the  retjuest  to  the  British  Government,  S.  Doc.  222, 56 
Cong.  1  sess.     See,  also,  S.  Doc.  113,  56  Cong.  1  sess. ;  H.  Doc.  618,  56  Cong.  1  sess. 


§  ^-']  ACTS    FALLINa    SHORT    OF    RECOGNITION.  215 

othor  side,  not  only  towards  tho  United  States,  ])ut  in  reference  to 
the  threat  nations  of  P^urope.  and  to  t\w  coniinereia!  and  other  connec- 
tions with  them,  respectively;  and,  generally,  to  inquire  into  the  state, 
the  characteristics,  and  the  proportions,  as  to  numbers,  intelligence, 
and  wealth  of  the  sevei-al  parties,  the  amount  of  population,  the  extent 
and  oro-anization  of  the  military  force,  and  the  pecuniary  resources  of 
th<^  countiy. 

"The  real  as  well  as  ostensible  object  of  your  mission  is  to  explain 
the  nuitual  advantat;-es  of  conmierce  with  the  United  States,  to  pro- 
mote liberal  and  .sfah/r  ref^ulations,  and  to  transmit  seasonable  infor- 
mation on  the  sul)ject.  In  order  that  you  may  render  the  more  service 
in  this  respect,  and  that  you  may.  at  the  same  time,  enjoy  the  j^reater 
protection  and  respectal)ility,  you  will  h(>  furnished  with  a  credential 
letter,  such  as  is  held  l)y  sundry  agents  of  the  United  States  in  the 
West  Indies,  and  as  Avas  lately  held  by  one  at  the  Havana,  and  under 
the  sanction  of  which  you  will  give  the  requisite  attention  to  commer- 
cial objects." 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  Joel  Poinsett,  agent  to  BuenoH  Ayrer^,  June 
28,  1810,  H.  Rep.  72,  20  Cong.  2  nesH.;  Br.  and  For.  State  Pai)"erH  (1812- 
1814),  II.  1219. 

IVIay  14,  1812,  a  copy  of  the.«e  instruction.^j  was  connnunicated  to  Mr.  Alexander 
Scott,  who  was  sent  as  agent  to  Caracas.  Mr.  Scott  was  al.so  advised  that 
the  fact  that  the  Venezuelan  provinces  ha<l  declared  tlieir  independence 
formed  an  essential  difference  between  their  situation  and  that  of  the 
other  Spanish  provinces  in  America,  but  that  until  tlieir  independence 
was  "more  f(jrmally  acknowledged  by  the  United  States"  it  could  not 
materially  affect  his  duties.  His  credentials  were  the  same  as  those  of 
Mr.  Poinsett.  He  was  to  inrjuire  particularly  :is  to  tiie  disposition  and 
al)ility  of  the  Venezuelan  peo])le  t(^  maintain  their  iudependence.  " Noth- 
ing would  be  more  absurd,"  declared  his  instructions,  "than  for  the  United 
States  to  acknowledge  their  independence,  in  form,  until  it  was  evident 
tliat  the  peoi)le  themselves  were  resolved  and  able  to  sui>port  it."  Mean- 
while a  friendly  comnmnication  was  to  be  preserved;  and  the  ministers  of 
the  United  States  at  London,  Paris,  and  St.  Petersburg  had  been  instructed 
to  make  known  to  those  courts  tiiat  their  ( Jovernment  took  an  interest  in 
the  independence  of  the  Siianish  i)rovinces.  (See,  for  the  full  text  of  the 
instructions,  which  are  signed  l)y  'Sir.  ^lonroe,  as  Secretary  of  State,  May 
14,  1812,  Br.  and  For.  State  Papers  (1812-1814),  II.  1220-1222.) 

Instructions  similar  to  those  given  to  3Ir.  Poinsett  and  ^Mr.  Scott,  were  given 
by  Mr.  Clay,  as  Secretary  of  State,  Sept.  (>,  1825,  to  Mr.  William  C.  Somer- 
ville,  as  agent  to  Crreece.     (MS.  Inst.  Special  Missions,  1.  'M.) 

"Mr.  Michael  Hogan  was  appointed  agent  for  connnerce  and  seamen  of  the 
United  States  at  Valparaiso  on  the  11th  Nov.,  1820,  and  till  the  arrival  of 
Mr.  Allen  [the  first  minister  of  the  United  States  to  Chile.  ai>pointed  Jan. 
27,  1823]  he  performed  the  duties  generally  apiiertaining  to  a  diplomatic 
agency  on  the  part  of  this  (iovermnent,  in  Chile,  from  the  necessity  of 
tlie  case,  but  without  any  special  authority  or  instructions  to  that 
effect.  *  *  *  In  the  cases  of  Mr.  Jolm  B.  Prevost,  Wm.  Tudor,  John  M. 
Forbes,  and  others,  wlu)  received  the  same  appointments  as  M  ichael  Hogan, 
as  agents  of  commerce  and  seamen,  before  regular  diplomatic  intercourse 
was  established  between  the  United  States  and  the  South  American  states, 


216  states:  recognition  and  continuity.  R  '^2- 

lliesc  irtMitU'iiu'ii  received  salaries  from  U\o  thousand  to  four  thousand  five 
hundred  dollars  per  aiuunn  each."  (Mr.  T.,ivin^ston,  Se<*.  of  State,  to  Mr. 
Wayne,  Fel).  25,  ISIW,  2o  MS.  Doni.  Let.  25.S. ) 
"  In  1828  consuls  were  appointed  l)y  (xreat  Britain  to  the  South  American 
republics,  and  the  various  jioveriniients  were  informed  that  the  appoint- 
'ments  had  been  made  for  the  ])rote(tion  of  British  subjects  and  for  the 
acquisition  of  information  which  mitrht  lead  to  the  establishment  of 
friendly  relations.  The  various  consuls  took  up  their  appointments  and 
acted,  but  were  not  gazetteil.  The  earliest  recofxnition  [by  Great  Britain] 
took  place  in  1825."     (Hall,  Int.  Law,  94. ) 

In  181»>,  when  the  iicknowledginent  of  the  independence  of  the  South 
Anieric-iin  colonies  was  under  consideration.  Mr.  Monroe  sent  three 
commissioners.  Cicsar  A.  Kodnev,  Theodericiv  Bland,  and  John  Gra- 
ham, in  a  ship-of-war.  to  visit  the  several  colonies,  inquire  into  the 
condition  of  things  in  respect  to  the  probability  of  endurance  of  suc- 
cessful hostilities,  and  then  report.  These  commissioners  were  not 
nominated  to  the  Senate,  thouo-ji  that  l)ody  was  in  session  when  they 
sailed,  but  went  exclusively  on  the  President's  nomination.  Their 
expenses  were  not  paid  out  of  the  conting-ent  fund,  but  were  met  by  a 
subsequent  appropriation  of  >^;>0.0()0  by  Congress. 

Schouler,  Hist,  of  the  I'nited  States,  III.  28;  President  ^lonroe's  First  Annual 
Message,  1817;  :Mr.  Adams,  Sec.  of  State,  to  Mr.  Hyde  de  Neuville,  July 
27,  1818,  MS.  Notes,  For.  Leg.;  Am.  State  Papers,  For.  Rel.  IV.  217-323.' 

"  Your  letter  of  the  8d.  instant  has  l)een  submitted  to  the  considera- 
tion of  th(>  President  of  the  United  States,  by  whose 
direction  I  have  the  honoi"  of  stating  that  the  measure 
solicited  in  the  memorial  to  wiiich  you  refer  caiuiot  be  adopted  in  the 
manner  proposed,  on  the  part  of  the  Executive  Administration  with- 
out inconvenience  to  the  public  interest.  'Letters  of  Credence  to  the 
'authorities  of  the  Island  of  Ilayti.  with  the  address  now  man}'  3"ears 
'assumed  by  them.'  you  are  aware  would  ])e  an  explicit  acknowledg- 
ment of  those  authorities,  and  if  the  example  of  the  British  Government 
formed  a  ride  of  authority  for  that  of  th(^  United  States,  it  is  believed 
that  no  such  letters  of  Credence  have  e\"er  been  issued  l)V  them. 

"It  is  truly  stated  by  the  memorialists  that  at  two  different  periods 
during  the  Life  of  Christophe.  agents  were  dispatched  b}^  the  Govern- 
mcmt  of  the  United  States,  with  a  view  to  o])tain  justice,  and  if  possible, 
iiidenuiity  for  thes(»  injuries,  l»ut  without  success.  A  special  agent  was 
also  sent  after  the  fall  of  Christophe.  to  claim  indemnity  from  the 
present  (existing  riders  of  th(^  island,  but  with  no  more  favorable  result. 
A  copy  of  the  Insti'uctions  to  this  agent,  so  far  as  they  relate  to  the 
claim  of  the  ^Memorialists  is  herewith  enclosed,  togeth(>r  with  his  report 
of  the  execution  of  his  agency,  and  the  pa|)ers  accompatiying  the  same, 
which  I  request  you  to  have  the  goodness  after  perusal  to  return  to 
this  Department.  The  President  is  iiowever  willing  to  order  Commo- 
dore  Porter  to  Ha3'ti.  and  to  instruct  him  to  obtain  an  interview  with 
the  Chief  of  the  Island  or  with  his  Scci'etary  of  State,  and  to  urge  the 


§  72.]  ACTS    FALLING    SHORT    OF    RECOGNITIOlSr.  217 

payment  of  such  sum,  as  will  make  adec[uate  indemnity  to  our  citizens 
for  the  property  which  was  unjustly  taken  from  them  by  that  Gov^ern- 
ment  under  the  sway  of  Christophe,  The  Conmiodore  may  take  with 
him  a  suitable  person,  possessing  the  contidence  of  the  parties  inter- 
ested, and  who  in  case  the  indemnity  is  not  promptly  made,  may  be 
authorized  by  him,  to  pursue  the  claims  in  his  absence.  The  Commo- 
dore will  in  such  event,  be  instructed  to  present  such  person  to  the 
Chief  of  the  Island,  or  other  proper  authority,  with  an  intimation  that 
he  will  be  left  there  for  the  purpose  specified. 

"It  is  also  suggested  by  the  President  that  if  it  should  suit  the  views 
of  the  claimants,  the  present  commercial  agent  of  the  United  vStates  at 
Port  au  Prince  may  be  instructed  to  present  their  claims  again  to  the 
consideration  of  the  President  Boyer." 

Mr.  Adams,  Sec.  of  State,  to  Messrs.  Samuel  Smith  and  James  Lloyd  ('.  S. 
Senate,  Feb.  24,  LS24,  20  MS.  Dom.  Let.  ;W0.  The  papers  referred  to  in 
the  foregoing  letter  were:  L  Copy  of  instructions  to  the  agent,  l)eingan 
extract  of  a  letter  from  Air.  Adams  to  ]Mr.  Edw.  Wyer,  Jan.  ;iO,  1821; 
2.  Mr.  E.  Wyer  to  ]\L-.  Adams,  April  10,  1821;  8.  Extrait  des  Archives 
publiques,  2  papers,  A.  &  B. ;  4.  Mr.  Boyer  to  Mr.  \Vyer  (C-)  March  17, 
1821;  5.  Same  to  same,  same  date;  6.  Petition  of  J.  B.  Davis  and  others. 

See  Adams'  Memoirs,  VI.  12;  Br.  &  For.  State  Papers,  1812-1814,  II.  1053, 
1060,  1065. 

Hayti  was  not  recognized  till  1862. 

In  February,  1845,  the  President  sent  a  commissioner  or  special 
agent  to  Santo  Domingo  to  inquire  concerning  its 
ommgo.  pQjji^j^..^  condition.  A  special  agent  was  again  sent  to 
the  island  in  1851  to  act  with  representatives  of  France  and  Great 
Britain  in  an  effort  to  bring  at)out  a  peace  ])etween  Ha3'ti  and  the 
Dominican  Republic.  Tiie  latter  Government  was  not  recognizinl  till 
1866. 

June  10,  1845,  Mr.  Edward  A.  Hopkins  was  appointed  special  agent 
to  Paraguay  to  cultivate  friendly  relations  with  the 
araguay.  country  and  obtain  "the  information  necessary  to 
enable  the  President  and  Congress  to  decide  whether  its  independence 
ought  to  be  recognized  by  the  United  States."  He  "  was  not  furnished 
with  any  letter  of  credence  to  the  minister  for  foreign  affairs  of  Para- 
guay, nor  with  any  power  whatever,  to  negotiate  or  act  in  a  diplo- 
matic character."  March  3(»,  1846,  he  Avas  "peremptorily  recalled." 
on  its  being  discovered  that  he  had  "  violated  his  instructions  by  repre- 
senting him.self  to  the  President  of  Paraguay  as  invested  with  a 
diplomatic  character,  by  conuuitting  the  President  and  Congn^ss  of  the 
United  States  to  him  in  favor  of  recognizing  the  independence  of  that 
coiuitry,  and  In'  offering  the  mediation  of  the  United  States  between 
the  Government  of  Paraguay  and  Buenos  Ay  res." 

Mr.  Buchanan,  Sec.  of  Statti,  to  Gen.  Alvear,  Aug.  14,  1846,  ^FS.  notes,  Argen- 
tine Leg.  VI.  19. 


218  states:  recognition  and  contintity.  [§  72. 

Juno  !>;,  1S49,  Mr.  Cla^'ton,  as  Soorotarv  of  State,  issued  to  Mr.  A. 

Dudley  Mann,  who  was  then  in  Europe,  instructions  in 
Mr.  Mann's  mission       i--*.  ••  i-ii  j-jx  i 

^  „  relation  to  a  mission  which  iie  was  aesired  to  under- 

to  Hungary. 

take  as  a  special  and  eonhdential  agent  to  Hungary. 

The  "principal  object"  of  his  mission,  said  the  instructions,  was 

"to  o))tain  minute  and  reliable  information  in  regard 

Objects:  (lUnqniry;  ^^  Hungary,  in  connection  with  the  atfairs  of  adjoining 

.,.  ^'  countries,  the  ]5robal)le  is.^ue  of  the  present  revolu- 

recognition.  ,  ^  ^ 

tionary  movements,  and  the  chances  we  may  have  of 
forming  commercial  arrangements  with  that  power,  favorable  to  the 
United  States."  In  the  ""desperate  conflict"  between  Austria  and 
Hungary,  Russia  had  "cho.'^en  to  as.sume  an  attitude  of  interference." 
If  it  should  appear  that  Hungary  was  ••a})le  to  maintain  *"  the  inde- 
pendence which  she  had  declared,  the  United  States  desired  "to  be 
the  very  iir.*<t  to  congratulate  her.  and  to  hail,  with  a  hearty  welcome, 
her  entrance  into  the  family  of  nations."  The  pro.spect,  however, 
seemed  to  be  "a  gloomy  one;"  and  ^Slr.  Mann  was  authorized,  if  he 
also  should  think  this  to  be  the  ca.><e.  to  su.'^pend  his  operations  and 
even  to  omit  to  visit  Hungary.  The  **  delicate  and  important  duties" 
with  which  he  was  charged  were  left,  it  was  .said,  "almost  wholly"  to 
his  own  "discretion  and  prudence."  He  was  to  decide  upon  his  own 
"  movements  and  places  of  destination."  the  "'  particular  points  "  as  to 
which  he  would  make  iiupiiries.  the  "proper  mode  of  approaching 
M.  Kossuth  and  his  confidential  advisers."  and  the  "communications" 
which  he  might  "deem  it  proper"  to  make  to  them,  on  the  part  of 
his  Government.  Future  instructions  would  to  a  great  extent  depend 
upon  his  reports.  Meanwhile,  he  was  furnished  with  "a  sealed  letter," 
introducing  him,  in  his  "official  character."  to  the  "minister  of  for- 
eign affairs  of  Hungary."  and  with  an  "open  copy."  which  he  was  to 
deliver  or  to  withhold,  as  circumstances  might  cause  him  to  think 
"proper  and  expedient."  In  conclusion,  the  instructions  said:  "You 
will  furnish  the  Department  with  a  copy  of  the  new  constitution,  if 
an}'  shall  have  l)een  formed,  of  Hungary,  and  acquaint  us  with  its 
operation;  and  whether  any,  and  what  other  nations  shall  have  recog- 
nized the  independence  of  Hungary,  or  intend  to  do  so.  Should  the 
new  government  prove  to  be.  in  your  opinion,  firm  and  stable,  the 
President  will  cheerfullv  recommend  to  Congress,  at  their  next  session, 
the  recognition  of  Hungary:  and  you  might  intimate,  if  you  should 
see  fit,  that  the  President  would,  in  that  event,  be  gratified  to  receive 
a  diplomatic  agent  from  Hungary  in  the  United  States,  by  or  before 
the  next  meeting  of  Congress;  and  that  he  entertains  no  doubt  what- 
ever that,  in  case  her  government  should  prov<'  to  l)e  firm  and  .stable, 
her  independence  would  be  .speedih-  recognized  by  that  enlightened 
body." 


§  72.]  ACTS   FALLING    SHORT    OF    RECOONITIOK.  2l0 

Accompanying  the  instructions  there  was  a  full  power  authorizing 
Mr.  Mann,  as  '"special  and  confidential  agent  of  the  United  States  to 
Hungary,"  to  negotiate  and  conclude,  with  any  person  "  duly  author- 
ized by  the  Hungarian  Government,"  a  commercial  convention.  The 
"sealed  letter"  to  which  the  instructions  refer  was  addressed  to  "His 
Excellency  the  Minister  for  Foreign  Affairs  of  Hungary."  It  intro- 
duced Mr.  Mann  as  ''special  and  confidential  agent  of  the  United 
States  to  the  Government  of  Hungary."  and  asked  for  him  *'a  recep- 
tion and  treatment  corresponding  to  his  station  and  to  the  purposes  for 
which  he  is  sent." 

In  the  course  of  his  instructions  to  ]Mr.  Mann.  Mr.  Clavton  observed 

that  the  '•anxiety"  which  had  been  felt  in  the  United 

*i.  States  as  to  the  fate  of   the  Hungarian    revolution, 

patny.  .  ,  '^  ' 

especially  since  the  intervention  of  Russia,  was  "by 
no  means  inconsistent  with  the  well-known  and  long-established  policy 
of  noninterference  in  the  domestic  concerns  of  other  nations  which  has 
ever  animated  and  governed  the  councils  and  conduct  of  the  American 
Government."  The  United  States  desired,  if  it  should  appear  that 
Hungary  was  "able  to  maintain  the  independence  she  has  declared," 
to  be  "the  ver}'  first  to  congratulate  her,  and  to  hail  with  a  hearty 
welcome  her  entrance  into  the  family  of  nations."  The  *'  best  wishes" 
of  the  United  States,  said  Mr.  Clayton,  attended  her.  A  policy  of 
"immobility,  backed  by  the  bayonet."  had  opposed  the  efforts  of  the 
"illustrious  man,"  Kossuth,  to  effect  reforms  and  ameliorate  the 
condition  of  his  countrymen.  To  the  contemplation  of  American 
statesmen,  Hungary  offered  "the  interesting  spectacle  of  a  great  peo- 
ple rising  superior  to  the  enormous  oppression"  that  had  "so  long 
weighed  her  down."  "She  is  now  described  to  us."  continued  ]Mr. 
Clayton,  "by  those  who  i^rofess  to  understand  her  position,  as  the 
representative  of  republicanism  and  of  liberal  principles.  Her  geo- 
graphical extent  and  situation,  and  her  population,  production^,  and 
mineral  wealth,  constitute  resources  whose  development  would  speedily 
follow  her  successful  struggle  for  independence.  In  this  case  new 
commercial  prospects  would  be  unfolded,  and  the  port  of  Fiume,  in 
the  Adriatic,  her  only  seaport,  would  l^ecome  unlocked,  and  opened  to 
admit  the  navigation  and  staples  of  the  United  States."  The  President 
therefore  wished  "to  obtain  information  in  regard  to  Hungary,  and 
her  resources  and  prospects,  with  a  view  to  an  early  recognition  of  her 
independence,  and  the  formation  of  commercial  relations  with  her."'^' 
Mr.  Mann  proceeded  to  Vienna,  but  when  he  arrived  there  the  revo- 
lution was  practically  ended,  and  he  did  not  visit  Hungary.'' 

a  S.  Ex.  Doc.  4.3,  31  Cong.  1  8ess.;  Br.  and  For.  State  Papers,  XXXVIII.  (1849-50), 
260-264. 

^  Political  Science  Quarterly,  X.  264- 


220  STATK;^:    RECOGNITION    AND    CONTINUITY.  [§73. 

•'  Durino-  the  lato  conflict  between  Austria  and  Hungary,  tnere  seemed 
to  l)e  a  prospect  that  the  latter  might  become  an  independent  nation. 
However  faint  that  prospect  at  the  time  appeared,  I  thought  it  my  duty, 
in  accordance  with  the  general  sentiment  of  the  American  people,  who 
deeply  sympathized  with  the  Magyar  patriots,  to  stand  prepared,  upon 
the  contingency  of  the  esta))lishnient  l)y  her  of  a  permanent  govern- 
ment, to  be  the  tirst  to  welcome  independent  Hungary  into  the  family 
of  nations.  For  this  purpose,  1  invested  an  agent,  then  in  Europe,  with 
power  to  declare  our  willingness  promptly  to  recognize  her  independ- 
ence in  the  event  of  her  ability  to  sustain  it.  The  powerful  intervention 
of  Russia  in  the  contest  extinguished  the  hopes  of  the  struggling  Mag- 
yars. The  United  States  did  not,  at  any  time,  interfere  in  the  contest; 
but  the  feelings  of  the  nation  were  strongly  enlisted  in  the  cause,  and 
by  the  sufferings  of  a  l>rave  people,  who  had  made  a  gallant  though 
unsuccessful  effort  to  be  free." 

President  Taylor's  Firtit  Annual  Message,  1849. 

Mr.  Abdy,  in  his  etlition  of  Kent  (1878),  92,  while  approving  the  course  of  the 
I'nited  States  in  regard  to  the  recognition  of  the  independence  of  the 
Spanish-American  States  and  of  Texas,  makes,  of  the  pai?sage  above  quoted, 
the  following  criticism: 
'  Is  it  necessary  to  criticise  a  document  in  which  two  faults  are  at  all  events 
visible,  the  delegacy  of  sovereign  powers  to  an  agent,  and  its  victory  of 
sympathy  and  sentiment  over  reason  and  law.  What  would  have  been 
thought  of  an  English  minister  who  should  have  directed  an  agent  in  the 
Confederate  States  to  declare  the  willingness  of  England  promptly  to  recog- 
nize their  indi'pendence,  in  the  event  of  their  ability  to  maintain  it?" 

See,  also,  Lawrence,  Com.  sur  les  Elements  du  Droit  Int.  I.  201. 

With  a  special  message  of  March  28,  1850,  President  Taylor  com- 
municated to  the  Senate,  in  response  to  a  resolution 
Publication   of  Mr.  ^,|.-  ^j^.j^  ),^,(|^,^  ^^^^,  j.,,^^.  ^f  ^j^.^  Mann's  instructions." 

Mann's       instruc-    ii-  "        t,        •li.T'i  'jt^^r 

In  his  message  i  resident  lay  lor  said:  My  purpose, 
as  freely  avowed  in  this  correspondence,  was  to  have 
acKnowiedged  the  independence  of  Hungary,  had  she  succeeded  in 
estiiblishing  a  government  </r  fado  on  a  ])asis  sufficiently  permanent  in 
its  character  to  have  justified  me  in  doing  so,  according  to  the  usages 
and  settled  principles  of  this  (xovernment."'  Such  being  the  President's 
design,  the  mission  of  Mr.  MannseiMus  to  have  derived  its  exceptional 
character  not  so  much  from  what  it  was  intended  ultimately  to  accom- 
plish, as  from  the  circumstances  ill  which  it  was  conceived  and  the  manner 
in  which  it  was  to  be  executed.  As  Mr.  ^Nlann  was  authorized,  in  case 
he  should  rind  a  Hungarian  government  in  existence  and  should  think 
it  firm  and  stable,  not  only  to  present  himself  to  it  in  an  "official 
character,"  l)ut  also  to  pledge  \\u\  President  to  receive  from  it  a  diplo- 
matic agent,   he  was  invested  with    discretionary  powers   as  to  the 


«Sen.  E.x.  Doc.  4S,  ."ilCong.  1  .«ess. 


§72.]  ACTS    FALLING    SHORT    OF   RECOGNITION.  221 

recog-nition  of  a  new  state  such  as  never  were  eonlided.  it  is  believed, 

to  any  other  foreign  agent  of  the  United  States. " 

After  the  publication  of  Mr.   Mann's  instructions,  the  Chevalier 

Hiilsemann.  Austrian  charge  d'affairs  at  Washino-ton, 
Mr.  Hulsemanii's  j-        ^   j    i.  ^  •>  i  .      ,        tw-i       '^    ,  . 

rotest  ^'^*  directed  to  enter  a  lornial  protest.      \\  hen  this 

protest  was  presented  President  Taylor  was  dead,  and 

a  reply  wa^  made  by  Mr.  ^^^ebster.  who  had  succeeded  ]Mr.  Clayton 

as  Secretary  of  State. 

•••The  undersigned,  charge  d'affaires  of  His  Majesty  the  Emperor 
of  Austria,  has  been  instructed  to  make  the  following  conmuuiication 
to  the  Secretary  of  State. 

''As  soon  as  the  Imperial  (Tovernment  ))ocame  aware  of  the  fact  that 
a  United  States  agent  had  been  d(\spatcbed  to  Vienna,  with  orders  to 
watch  for  a  favorable  moment  to  recognize  the  Hungarian  Repu))lic, 
and  to  conclude  a  treaty  of  commerce  with  the  same,  the  undersigned 
was  directed  to  address  some  contidential  but  pressing  representations 
to  the  Caljinet  of  Washington  against  that  proceeding,  which  is  so 
much  at  variance  with  those  principles  of  international  law,  so  scrupu- 
lously adhered  to  by  Austria,  at  all  times  and  under  all  circumstances, 
towards  the  United  States.  In  fact,  how  is  it  possible  to  reconcile 
such  a  mission  with  the  principle  of  nonintervention,  so  formally 
announced  by  the  United  States  as  the  basis  of  American  policy,  and 
which  had  just  been  sanctioned  with  so  much  solemnity  by  the  Presi- 
dent, in  his  inaugural  address  of  March  5, 18i9  {  Was  it  in  return  for 
the  friendship  and  confidence  which  Austria  had  never  ceased  to  mani- 
fest towards  them,  that  the  United  States  became  so  impatient  for  the 
downfall  of  the  Austrian  monarchy,  and  even  sought  to  accelerate 
that  event  by  the  utterance  of  their  wishes  to  that  effect?  Those  who 
did  not  hesitate  to  assume  the  responsibility  of  sending  Mr.  Dudley 
Mann  on  such  an  errand,  should,  independent  of  considerations  of 
propriety,  have  borne  in  mind  that  they  were  exposing  their  emissary 
to  be  treated  as  a  spy.  It  is  to  ])e  regretted  that  the  Amm-ican  Gov- 
ernment was  not  better  informed  as  to  the  actual  resources  of  Austria, 
and  her  historical  perseverance  in  defending  her  just  rights.  A 
knowledge  of  those  resources  would  have  led  to  the  conclusion  that  a 
contest  of  a  few  months'  duration  could  neither  have  exhausted  the 
energies  of  that  power,  nor  turned  aside  its  purpose  to  i>ut  down  the 
insurrection.  Austria  struggled  against  the  French  Pevolution  for 
twenty-five  years;  the  courage  and  perseverance  which  she  exhibited 
in  that  memorable  contest  have  Ijcen  appreciated  })y  the  Avhole  world. 

«  No  record  exint-s  in  the  Department  of  State  of  the  .sending  of  an  agent  to  Vienna 
to  investigate  the  acts  of  certain  Venetian  con:?pirators,  among  whom  Ava.s  Daniel 
Manin,  and  of  Consul-General  Sparks,  during  the  revolution  of  184S— 19.  (Dept.  of 
State  to  Mr.  Hetzler,  Feb.  10,  1897,  215  :MS.  Dom.  Let.  637.) 


222  states:  recognition  aisd  continuity.  [§  82. 

"To  the  iir<^ent  ivpiv.sontatioiis  of  tlio  up.dersijrned,  Mr.  Cla3'ton 
answered  that  Mr.  Mann's  mission  had.  no  other  object  in  view  than 
to  obtain  reliabk'.  information  as  to  the  true  state  of  affairs  in  Hun- 
gar}',  by  jx^rsonal  observation.  This  exphmation  ean  hardly  be 
admitted,  for  it  says  very  little  as  to  the  cause  of  the  anxiety  Avhich 
was  felt  to  ascertain  the  chances  of  the  revolutionists.  Unfortunately, 
the  language  in  which  Mr.  Mann's  instructions  were  drawn  gives  us  a 
ver}'  correct  idea  of  their  seope.  This  language  was  offensive  to  the 
imperial  cabinet,  for  it  designates  the  Austrian  Government  as  an  iron 
rule,  and  represents  th(>  re))el  chief.  Kossuth,  as  an  illustrious  man; 
while  improper  expressions  are  introduced  in  regard  to  Russia,  the 
intimate  and  faithful  ally  of  Austria.  Notwithstanding  these  hostile 
demonstrations,  the  imperial  cabinet  has  deemed  it  proper  to  preserve 
a  conciliator}'  deportment,  making  ample  allowance  for  the  ignorance 
of  the  Cabinet  of  Washington  on  the  subject  of  Hungarian  affairs,  and 
its  disposition  to  give  credence  to  the  mendacious  rumors  which  are 
propagated  In-  the  American  press.  This  extremel}"  painful  incident, 
therefore,  might  have  ])een  passed  over  without  any  written  evidence 
being  left,  on  our  part,  in  the  archives  of  the  United  States,  had  not 
General  Taylor  thought  proper  to  revive  the  whole  subject  bv  com- 
municating to  the  Senate,  in  his  message  of  the  18th  of  last  March, 
the  instructions  with  which  Mr.  ]\Iann  had  been  furnished  on  the  occa- 
sion of  his  mission  to  Vienna.  The  publicity  which  has  been  gi\ento 
that  document  has  placed  the  Imperial  Government  under  the  neces- 
sity of  entering  a  formal  protest,  through  its  official  representative, 
against  the  proceedings  of  the  American  Government,  lest  that  Gov- 
ernment should  construe  our  silence  into  approbation,  or  toleration 
even,  of  the  principles  which  appear  to  have  guided  its  action  and  the 
means  it  has  adopted. 

''In  view  of  all  these  circumstances,  the  undersigned  has  been 
instructed  to  declare  that  the  Imperial  Government  totally  disap- 
proves, and  will  always  continue  to  disapprove,  of  those  proceedings, 
so  offensive  to  the  laws  of  propriety:  and  that  it  protests  against  all 
interference  in  the  internal  affairs  of  its  Government.  Having  thus 
fulfilled  his  duty,  the  undersigned  considers  it  a  fortunate  circumstance 
that  he  has  it  in  his  power  to  assure  the  Secretary  of  State  that  the 
Imperial  Government  is  disposed  to  cultivate  i-elations  of  friendship 
and  good  understsmding  with  the  United  States,  relations  which  ma}^ 
have  been  momentarily  weakened.  ]>ut  which  could  not  again  be  seri- 
oush' disturbed  without  placing  the  cardinal  interests  of  the  two  coun. 
tries  in  jeopardy. 

'"The  instructions  for  addressing  this  conununication  to  Mr.  Clay- 
ton reached  Washington  at  the  time  of  General  Taylor's  death.  In 
compliance  with  the  requisitions  of  propriety,  the  undersigned  deemed 
it  his  dutv  to  defer  the  task  until  the  new  administration  had  been 


§72.]  ACTS    FALLING    SHORT    OF   RECOGNITION.  223. 

completely  oroanized;  a  delay  which  he  now  rejoices  at,  as  it  nas  given 
him  the  opportunity  of  ascertaining  from  the  new  President  himself, 
on  the  occasion  of  the  reception  of  the  diplomatic  corps,  that  the 
fundamental  policy  of  the  United  States,  so  frequently  proclaimed, 
would  guide  the  relations  of  the  American  Government  with  the  other 
powers.  Even  if  the  Government  of  the  United  States  were  to  think 
it  proper  to  take  an  indirect  part  in  the  political  movements  of  Europe,^ 
American  policy  would  be  exposed  to  acts  of  retaliation,  and  to  cer- 
tain inconveniences,  which  could  not  fail  to  affect  the  conmierce  and 
the  industrj'  of  the  two  hemispheres.  All  countries  are  obliged,  at 
some  period  or  other,  to  struggle  against  internal  difficulties;  all  forms 
of  government  are  exposed  to  such  disagreeable  episodes;  the  United 
States  have  had  some  experience  in  this  very  recently.  Civil  war  is 
a  possible  occurrence  everywhere,  and  the  encouragement  which  is 
given  to  the  spirit  of  insurrection  and  of  disorder  most  frequently 
falls  back  upon  those  who  seek  to  aid  in  its  development,  in  spite  of 
justice  and  wise  polic}'."    ^ 

Chevalier  Hiilsemann  to  Mr.  Webster,  Sept.  30,  18.50,  S.  Ex.  Duo.  9,  .31  Cong. 
2se8S.;  Webster's  AVorks,  YI.  488;  Br.  &  For.  State' Papers,  XXXVIII. 
271. 

"The  undersigned,  Secretary  of  State  of  the  United  States,  had  the 
honor  to  receive  some  time  ago  the  note  of  Mr.  Hiilse- 
mann.  charge  d'affaires  of  His  Majesty  the  Emperor 
of  Austria,  of  the  30th  September.  Causes  not  arising  from  any  want 
of  personal  regard  for  Mr.  Hiilsemann  or  of  proper  respect  for  his 
Goveriunent  have  delayed  an  answer  luitil  the  present  moment.  Having 
submitted  Mr.  Hiilsemann's  letter  to  the  President,  the  undersigned  is 
now  directed  by  him  to  return  the  following  reply: 

'"The  objects  of  Mr.  Hiilsemann's  note  are,  first,  to  protest,  by  order 
of  his  Government,  against  the  steps  taken  by  the  late  President  of  the 
United  States  to  ascertain  the  progress  and  i)robable  residt  of  the  revo- 
lutionary movements  in  Hungary;  and,  secondly,  to  complain  of  some 
expressions  in  the  instructions  of  the  late  Secretar}-  of  State  to  Mr.  A. 
Dudley  Mann,  a  confidential  agent  of  the  United  States,  as  comnuini- 
cated  by  President  Taylor  to  the  Senate  on  the  i^Stli  of  March  last. 

"The  principal  ground  of  protest  is  founded  on  the  idea  or  in  the 
allegation  that  the  Government  of  the  United  States,  ))y  the  mission  of 
Mr.  Mann  and  his  instructions,  has  interfered  in  the  domestic  affairs 
of  Austria  in  a  manner  unjust  or  disrespectful  toward  that  power.  The 
President's  message  Avas  a  communication  made  })v  him  to  the  Senate, 
transmitting  a  correspondence  between  the  Executive  Goveriunent  and 
a  confid(!ntial  agent  of  its  own.  This  Avould  seem  to  be  itself  a  domestic 
tran.saction — a  mere  instance  of  intercourse  l)etween  the  President  and 
the  Senate  in  the  manner  which  is  usual  and  indispensable  in  comnui- 
nications  between  the  different  branches  of  the  Government.     It  was 


224  states:  recog:nitk>x  and  ct>>TixriTY.  [§  72. 

not  adarcssod  either  to  Austria  or  Huiitrurv,  nor  was  it  any  public 
manifesto  to  which  any  foreijrn  state  was  ctilled  on  to  reply.  It  was 
an  account  of  its  transactions  connininiiated  l»y  the  Executive  Govern- 
ment to  the  Senate  at  the  request  of  tiiat  )»ody — made  public,  indeed, 
but  made  public  only  because  such  is  tlie  common  and  usual  course  of 
proceedinyf — and  it  may  l)c  rejrsH-dcd  as  somewhat  strant^-e,  therefore, 
that  the  Austrian  cabinet  did  not  perceive  that,  by  the  instructions 
given  to  Mr.  Hiilsemann.  it  was  itself  interfering  with  the  domestic 
concerns  of  a  foreign  state,  the  very  thing  which  is  the  ground  of  its 
complaint  against  the  United  States. 

"This  Department  has  on  fonuer  occasions  informed  the  ministers 
of  foreign  powers  that  a  comnmnication  from  the  President  to  either 
house  of  Congress  is  regarded  as  a  domi^stic  connnunication.  of  which, 
ordinarily,  no  foreign  state  has  cognizance,  and  in  more  recent  instances 
the  great  inconvenienci'  of  making  such  communications  subjects  of 
diplomatic  correspondence  and  discussion  lias  been  fully  shown.  If  it 
had  been  the  pleasure  of  His  Maje-^ty  the  Emperor  of  Austria  during 
the  struggles  in  Hungary  to  have  admonished  the  provisional  Govern- 
ment or  the  people  of  that  country  against  involving  themselves  in  dis- 
aster 1)V  following  the  evil  and  dangerous  example  of  the  United  States 
of  America  in  making  efl'orts  for  the  establishment  of  independent 
governments,  such  an  admonition  from  that  sovereign  to  his  Hun- 
garian subjects  would  nt)t  have  originated  here  a  diplomatic  corre- 
spondence. The  President  might,  perhaps,  on  this  grovuid  have  declined 
to  direct  any  particular  reply  to  Mr  Hiilsemann's  note:  but  out  of 
proper  respect  for  the  Austrian  (iovennnent  it  has  been  thought  better 
to  answer  that  note  at  length,  and  the  more  especially  as  the  occasion 
is  not  unfavorable  for  the  expression  oi  the  general  sentiments  of  the 
Government  of  the  United  States  ui)on  the  topics  which  that  note 
discusses, 

"A  leading  subject  in  ^Ir.  1  liilsemanirs  note  is  that  of  the  correspond- 
ence between  Mr.  Hidsemann  and  the  predecessor  of  the  undersigned, 
in  which  Mr.  Clayton,  by  dii'cction  of  the  President,  informed  Mr. 
Hiilsemann  "that  !Mr,  Mann's  mission  had  no  other  object  in  view  than 
to  obtain  reliable  information  as  to  the  true  state  of  affairs  in  Hungary 
by  personal  observation.'  ]Mr.  Hiilsemann  remarks  that  'this  explana- 
tion can  hardly  be  admitted,  for  it  >ays  very  little  as  to  the  cause  of  the 
anxiety  wnich  was  felt  to  ascertain  the  chances  of  the  i-evolutionists.' 
As  this,  however,  is  the  only  pur])ose  which  can.  with  any  appearance 
of  truth,  be  attributed  to  the  agency,  as  nothing  whatever  is  alleged  by 
Mr,  Hiilsemann  to  have  been  either  done  or  said  by  the  agent  incon- 
sistent with  such  an  ol)ject.  the  undersigned  conceives  that  Mr.  Clay- 
ton's explanation  ought  to  l>e  deemed  not  only  admissible  but  quite 
.satisfactory.  Mr.  Hfilsemann  states  in  the  course  of  his  note  that  his 
instructions  to  address  his  present   communication    to  Mr,   Clayton 


§  T2.]  ACTS    FALLING    SHOET    OF    EECOGNITIOK.  225 

reached  Washington  about  the  time  of  the  lamented  death  of  the  late 
President,  and  that  he  delayed  from  a  sense  of  propriety  the  execution 
of  his  task  until  the  new  Administration  should  be  fully  organized,  '  a 
delaj'  which  he  now  rejoices  at,  as  it  has  given  him  the  opportunity  of 
ascertaining  from  the  new  President  himself,  on  the  occasion  of  the 
reception  of  the  diplomatic  corps,  that  the  fundamental  polic}'  of  the 
United  States,  so  frequently  proclaimed,  would  guide  the  relations  of 
the  American  Government  with  other  powers/  Mr,  Hiilsemann  also 
observes  that  it  is  in  his  power  to  assure  the  undersigned  '  that  the 
Imperial  Government  is  disposed  to  cultivate  relations  of  friendship 
and  good  understanding  with  the  United  States.*  The  President  re- 
ceives this  assurance  of  the  disposition  of  the  Imperial  Government 
with  great  satisfaction,  and,  in  consideration  of  the  friendly  relations 
of  the  two  Governments  thus  nuitually  recognized,  and  of  the  peculiar 
nature  of  the  incidents  In'  which  their  good  understanding  is  supposed 
by  Mr.  Hiilsemann  to  have  been,  foi*  a  moment,  disturbed  or  endan- 
gered, the  President  regrets  that  Mr.  Hiilsemann  did  not  feel  himself 
at  libertv  wholly  to  forbear  from  the  execution  of  instructions,  which 
were  of  course  transmitted  from  Vienna  without  any  foresight  of  the 
state  of  things  under  which  thev  would  reach  Washington.  If  I\lr. 
Hiilsemann  saw  in  the  address  of  the  President  to  the  diplomatic  corps 
satisfactory'  pledges  of  the  sentiments  and  the  policy  of  this  Govern- 
ment in  regard  to  neutral  rights  and  neutral  duties,  it  might,  perhaps, 
have  been  better  not  to  bring  on  a  discussion  of  past  transactions. 
But  the  undersigned  readily  admits  that  this  was  a  ({uestion  lit  only 
for  the  consideration  and  decision  of  ^Nlr.  Hiilsemann  himself;  and 
although  the  President  does  not  see  that  any  good  purpose  can  be 
answered  b}-  reopening  the  incjuiry  into  the  propriety  of  the  steps  taken 
by  President  Tavlor  to  ascertain  the  probable  issue  of  the  late  civil 
war  in  Hungary,  justice  to  his  memory  requires  the  undersigned 
briefly  to  restate  the  history  of  those  steps  and  to  show  their  consist- 
enc}"  with  the  neutral  policy  which  has  invariably  guided  the  Govern- 
ment of  the  United  States  in  its  foreign  relations,  as  well  as  with  the 
established  and  well-settled  principles  of  national  intercourse  and  the 
doctrines  of  public  law. 

"The  undersigned  will  first  observe  that  the  President  is  persuaded 
His  Majesty  the  Emperor  of  Austria  does  not  think  that  the  Govern- 
ment of  the  United  States  ought  to  view,  with  unconcern,  the  extraor- 
dinary events  which  have  occurred,  not  only  in  his  dominions,  l)ut  in 
many  other  parts  of  P^urope,  since  February,  184S.  The  Government 
and  people  of  the  United  States,  like  other  intelligent  governments  and 
communities,  take  a  lively  interest  in  the  movements  and  the  events 
of  this  remarkable  age,  in  whatever  part  of  the  Avorld  they  mav  he 
exhibited.  But  the  interest  taken  by  the  United  States  in  those  events 
has  not  proceeded  from  any  disposition  to  depai't  from  that  neutrality 

H.  Doc.  551 15 


22(>  states:  recognition  and  continuity.  [§  72. 

toward  foreign  powers  which  is  among  the  deepest  principles  and  the 
most  cherished  traditions  of  the  political  history  of  the  Fnion.  It  has 
been  the  necessary  effect  of  the  unexampled  character  of  the  events 
themselves,  wluch  could  not  fail  to  arrest  the  attention  of  the  contem- 
porary world,  as  they  will  doubtless  lill  a  memorable  page  in  history. 
But  the  undersigned  goes  further,  and  freely  admits  that  in  proportion 
as  these  extraordinary  events  appeared  to  have  their  origin  in  those 
great  ideas  of  responsible  and  popular  governments,  on  which  the 
American  constitutions  themselves  are  wholly  founded,  they  could  not 
but  command  the  wariu  sympathy  of  the  people  of  this  country. 

••Well-known  circumstances  in  their  history,  indeed  their  whole  his- 
tory, have  made  them  the  representatives  of  purely  popular  principles 
of  government.  In  this  light  they  now  stand  before  the  world.  They 
could  not.  if  they  would,  conceal  their  character,  their  condition,  or  their 
destiny.  They  could  not,  if  they  so  desired,  shut  out  from  the  view  of 
mankind  the  causes  which  have  placed  them,  in  so  short  a  national 
career,  in  the  station  which  they  now  hold  among  the  civilized  states 
of  the  world.  They  could  not,  if  they  desired  it,  suppress  either  the 
thoughts  or  the  hopes  which  arise  in  men's  minds,  in  other  countries, 
from  contemplating  their  successful  example  of  free  govermnent.  That 
ver}-  intelligent  and  distinguished  personage,  the  Emperor  Joseph  the 
Second,  was  among  the  lirst  to  discern  this  necessary  consequence  of 
the  American  Revolution  on  the  sentiments  and  opinions  of  the  people 
of  Europe.  In  a  letter  to  his  minister  in  the  Netherlands  in  1787,  he 
observes  that  *  it  is  remarkable  that  France,  by  the  assistance  which 
she  afforded  to  the  Americans,  gave  birth  to  reflections  on  freedom.' 
This  fact,  which  the  sagacity  of  that  monarch  perceived  at  so  early  a 
day,  is  now  known  and  admitted  l)y  intelligent  powers  all  over  the 
world.  True,  indeed,  it  is.  that  the  prevalence  on  the  other  continent 
of  sentiments  favorable  to  republican  liberty,  is  the  result  of  the  reaction 
of  America  upon  Europe;  and  the  source  and  center  of  this  reaction  has 
doubtless  been,  and  now  is,  in  these  United  States.  The  position  thus 
belonging  to  the  United  States  is  a  fact  as  inseparable  from  their  his- 
tory, their  constitutional  organization,  and  their  character,  as  the  oppo- 
site position  of  the  powers  composing  the  European  alliance  is  from  the 
history  and  constitutional  organization  of  the  government  of  those 
powers.  The  sovereigns  who  form  that  alliance  have  not  unfrequently 
felt  it  their  right  to  interfere  with  th(^  political  movements  of  foreign 
states;  and  have,  in  their  manifestoes  and  declarations,  denounced  the 
popular  ideas  of  the  age  in  terms  so  comprehensive  as  of  necessity  to 
include  the  Ignited  States,  and  their  forms  of  government.  It  is  well 
known  that  one  of  the  leading  principles  announced  by  the  allied  sov- 
ereigns, after  the  restoration  of  the  Bourbons,  is.  that  all  popular  or 
constitutional  rights  are  holden  no  otherwise  than  as  grants  and  indul- 
gences from  crowned  heads.     *  Useful  and  necessary  changes  in  legis- 


S  72.]  ACTS    FALLING    SHORT    OF    RECOGNITION.  227 

lation  and  administration,"  .says  the  Laybach  (iivular  of  ^lav.  Is21. 
"ought  only  to  emanate  from  the  free  av ill  and  intelligent  conviction 
of  those  whom  God  has  rendered  responsible  for  power;  all  that  devi- 
ates from  this  line  necessarily  leads  to  disorder-,  commotions,  and  evils 
far  more  insufferable  than  those  which  they  pretend  to  renuHlv."  And 
his  late  Austrian  Majesty.  Francis  I.  is  reported  to  hav«'  declared  in  an 
address  to  the  Hungarian  Diet,  in  1820,  that  'the  whole  world  had 
become  foolish,  and,  leaving  their  ancient  laws,  was  in  seaicli  of  imagi- 
nar}'  constitutions.'  These  declarations  amount  to  nothing  less  than 
a  denial  of  the  lawfulness  of  the  origin  of  the  Government  of  the  United 
States,  since  it  is  certain  that  that  Govermnent  was  established  in  con- 
sequence of  a  change  which  did  not  ])r()ceed  from  thi-ones.  or  the  per- 
mission of  crowned  heads.  But  the  (to\ crmnent  of  the  I'nited  States 
heard  these  denunciations  of  its  fundamental  principles  without  I'emon- 
strance,  or  the  disturbance  of  its  equaninuty.  This  was  thirty  years 
ago. 

"The  powder  of  this  Republic,  at  the  present  moment,  is  spread  over  a 
region,  one  of  the  richest  and  most  feitile  on  the  globe,  and  of  an  extent 
in  comparison  with  which  the  pc^ssessions  of  the  house  of  Ilapsburg 
are  but  as  a  patch  on  the  earth's  surface.  Its  population,  already 
25,000,000.  will  exceed  that  of  the  Austrian  Empire  within  the  jx'riod 
during  which  it  may  be  hoped  that  Mr.  Hiilsemaim  may  yet  remain  in 
the  honorable  discharge  of  his  duties  to  his  Government.  Its  naviga- 
tion and  conunerce  are  hardly  exceeded  by  the  oldest  and  most  com- 
mercial nations;  its  maritime  means  and  its  maritime  ])ower  may  be 
seen  by  Austria  herself,  in  all  seas  where  she  has  ports,  as  well  as  it 
may  be  seen.  also,  in  all  other  ([uarters  of  the  glo])e.  Life.  lil)erty, 
property,  and  all  personal  rights  are  amply  secured  to  all  citizens,  and 
protected  by  just  and  staV)le  laws;  and  ci"edit,  public  and  private,  is  as 
well  established  as  in  any  government  of  continental  Europe.  And  the 
country,  in  all  its  interests  and  concerns,  partakes  most  largely  in  all 
the  improvements  and  progress  which  distinguish  the  age.  Certainly, 
the  United  States  may  b(»  jnirdoned.  even  by  those  who  ])rofess  adher- 
ence to  the  principles  of  absolute  govermnents.  if  they  entertain  an 
ardent  affection  for  those  popular  forms  of  political  organization  \vhi<'h 
have  so  rapidly  advanced  their  own  prospei-ity  and  haj)[)iness.  and 
enabled  them,  in  so  short  a  period,  to  bring  their  country  and  the  hem- 
isphere to  which  it  belongs  to  the  notice  and  respiM-tful  i-egard.  not  to 
say  the  admiration,  of  the  civilized  world.  Xevertludess.  the  I'nited 
States  have  abstained,  at  all  times,  from  acts  of  interference  with  the 
political  changes  of  P^urope.  They  can  not.  however,  fail  to  cherish 
alwa^'S  a  lively  interest  in  the  fortunes  of  nations  struggling  for  insti- 
tutions like  their  own.  But  this  sympathy,  so  far  from  Ix'ing  neces- 
sarily a  hostile  feeling  toward  any  of  the  i)arties  to  tiiese  great  national 
struggles,  is  quite  consistent  with  amicable   relations  with   them  all. 


228  states:  recognition  and  continuity.  [§  72. 

The  Hungarian  people  are  three  or  four  times  as  numerous  as  the 
inhabitants  of  these  United  States  were  when  the  American  Revolution 
broke  out.  They  possess,  in  a  distinct  laiiguag-e,  and  in  other  respects, 
important  elements  of  a  separate  nationality,  which  the  Anglo-Saxon 
race  in  this  country  did  not  possess,  and  if  the  United  States  wish  suc- 
cess to  countries  contending-  for  popular  constitutions  and  national 
independence  it  is  only  because  they  regard  such  constitutions  and 
such  national  independence  not  as  imaginary,  ])ut  as  real  blessings. 
They  claim  no  right,  however,  to  taive  part  in  the  struggles  of  foreign 
powers  in  order  to  promote  these  ends.  It  is  only  in  defense  of  his 
own  Government,  jind  its  principles  and  character,  that  the  under- 
signed has  now  expressed  himself  on  this  subject.  But  when  the 
United  States  behold  the  people  of  foreign  countries  without  any  snch 
interference  spontaneously  moving  toward  the  adoption  of  institutions 
like  their  own,  it  surely  can  not  be  expected  of  them  to  remain  whollj^ 
indifferent  spectators. 

"  In  regard  to  the  recent  veiy  important  occurrences  in  the  Austrian 
Empire,  the  undersigned  freely  admits  the  difhculty  which  exists  in 
this  country,  and  is  aUuded  to  by  Mr.  Hiilsemann,  of  obtaining  accu- 
rate information.  But  this  diiliculty  is  l)y  no  means  to  be  ascri})ed  to 
what  Mr.  Hiilsemaim  calls — with  little  justice,  as  it  seems  to  the 
undersigned — 'the  mendacious  rumors  propagated  b}"  the  American 
press.'  For  information  on  this  su])ject.  and  others  of  the  same  kind, 
the  American  press  is,  of  necessity,  almost  wholly  dependent  upon 
that  of  Europe;  and  if  "mendacious  rumors'  respecting  Austrian  and 
Hungarian  affairs  have  been  anywhere  propagated,  that  propagation 
of  falsehoods  has  been  most  prolific  on  the  European  continent,  and  in 
countries  iimnediately  l)ordering  on  the  Austrian  I^mpire.  But, 
wherever  these  errors  may  have  originated,  they  certainly  justiffed  the 
late  President  in  seeking  true  information  through  authentic  channels. 
His  attention  was,  iirst.  particulaily  drawn  to  the  state  of  things  in 
Hungary,  by  the  correspondence  of  Mr.  Stiles,  charge  d'affaires  of  the 
United  States  at  Vienna.  In  the  autunm  of  1848,  an  application  was 
made  to  this  gentleman,  on  behalf  of  Mr.  Kossuth,  foi'merly  minister 
of  ffnance  for  the  Kingdom  of  Hungary  by  imperial  appointment,  but 
at  the  time  the  apjjlication  was  made  chief  of  the  revolutionary  govern- 
ment. The  object  of  this  application  was  to  ol)tain  the  good  offices  of 
Mr.  Stiles  with  the  Imperial  Government,  with  a  view  to  the  suspen- 
sion of  hostilities.  This  ai)plication  became  the  sul)ject  of  a  conference 
between  Prince  Schwarzenberg,  the  imperial  minister  for  foreign 
affairs,  and  Mr.  Stiles.  The  prince  conuniMided  the  considerateness 
and  propriety  with  Avhich  ]\Ir.  Stih>s  had  acted;  and,  so  far  from  his 
disapproving  his  interfei-ence.  advised  him.  in  case  he  received  a  fur- 
ther connnunication  from  the  r«>volutionary  government  in  Hungaiy, 
to  have  an  interview  with  Prince  Windischgratz,  who  Mas  charged  by 


§  ^2.]  ACTS    FALLING    SHORT    OF    RECOGNITION.  229 

the  Emperor  with  the  proceedings  determined  on  in  relation  to  that 
Kingdom.  A  week  after  these  occurrences.  Mi-.  Stiles  received, 
through  a  secret  channel,  a  communication  signed  by  L.  Kossutlr, 
president  of  the  conmiittee  of  defense,  and  countersigned  })y  Francis 
Pulskv,  secretiiry  of  state.  On  the  receipt  of  this  coinmunication.  Mr. 
Stiles  had  an  interview  with  Princ^  AVindischgnitz.  '  who  received  him 
with  the  utmost  kindness,  and  thanked  him  for  his  (^tiorts  toward 
reconciling  the  existing  difficulties.'  Such  were  the  incidents  which 
first  drew  the  attention  of  the  Government  of  the  United  States  par- 
ticularly to  the  affairs  of  Hungary,  and  the  conduct  of  Mr.  Stiles, 
though  acting  without  instructions  in  a  matter  of  much  delicacv. 
having  been  viewed  with  satisfaction  by  the  Imperial  (rovernment, 
was  approved  by  that  of  the  United  States. 

''In  the  course  of  the  year  184S  and  in  the  early  part  of  1841».  a  consid- 
erable number  of  Hungarians  came  to  the  I'nited  States.  Among  them 
were  individuals  representing  themselves  to  be  in  the  confidence  of  the 
revolutionary"  government,  and  by  these  persons  the  President  was 
strongly  urged  to  recognize  the  existence  of  that  government.  In  these 
applications,  and  in  the  manner  in  which  the}'  were  viewed  by  the  Presi- 
dent, there  was  nothing  unusual;  still  less  was  there  anything  unau- 
thorized b\'  the  law  of  nations.  It  is  the  right  of  every  independent 
state  to  enter  into  friendly  relations  with  every  other  independent 
state.  Of  course,  questions  of  prudence  naturally  arise  in  reference 
to  new  states,  brought  by  successful  revolutions  into  the  family  of 
nations;  but  it  is  not  to  l)e  required  of  neutral  powers  that  the}'  should 
await  the  recognition  of  the  new  government  by  the  parent  state.  No 
principle  of  public  law  has  been  more  frequently  acted  upon,  within  the 
last  thirty  years,  by  the  great  powers  of  the  world  than  this.  Within 
that  period  eight  or  ten  new  states  have  established  independent  gov- 
ernments within  the  limits  of  the  colonial  dominions  of  Spain  on  this 
continent,  and  in  Europe  the  same  thing  has  been  done  l)y  Belgium 
and  Greece.  The  existence  of  all  these  governments  was  recognized 
by  some  of  the  leading  powers  of  Europe,  as  well  as  ^)\  the  United 
States,  before  it  was  acknowledged  by  the  states  from  which  they  had 
separated  themselves.  If.  therefore,  the  United  Stotes  had  gone  so  far 
as  formally  to  acknowledge  the  independence  of  Hungary,  although,  as 
the  result  has  proved,  it  would  have  been  a  precipitate  step,  and  one 
from  which  no  benefit  would  have  resulted  to  either  party,  it  would 
not,  nevertheless,  have  been  an  act  against  the  law  of  nations,  provided 
they  took  no  part  in  her  contest  with  Austria.  But  the  United  States 
did  no  such  thing.  Not  only  did  they  not  yield  to  Hungary  any  actual 
countenance  or  succor;  not  only  did  they  not  show  their  ships  of  war 
in  the  Adriatic  with  any  menacing  or  hostile  aspect,  l)ut  they  studiously 
abstained  from  everything  which  had  not  1)een  done  in  other  cases  in 
thues  past,  and  contented  themselve.-.  with  instituting  an  inquiry  into 


230  states:  kecognition  and  continuity.  [§  T2. 

the  trutti  and  reality  of  alleged  political  ocourrences,  Mr.  Hiilsemann 
incorrectly  states,  unintentionalh^  certainly,  the  nature  of  the  mission 
of  this  agent,  when  he  says  that  *a  United  States  ag-ent  had  been  dis- 
patched to  Vienna  with  orders  to  watch  for  a  favorable  moment  to 
recognize  the  Hungarian  republic,  and  to  conclude  a  treaty  of  com- 
merce with  the  same.'  This,  indec^^.  would  have  been,  a  lawful  ol)ject, 
but  Mr.  Miami's  errand  was,  in  the  tii'st  instance,  purely  one  of  incjuiry. 
He  had  no  power  to  act,  unless  he  had  first  come  to  the  conviction  that 
a  firm  and  stable  Hungarian  goverinuent  existed.  'The  principal 
object  the  President  has  in  view.'  according  to  his  instructions,  'is  to 
obtain  minute  and  reliable  infoi-mation  in  regard  to  Hungary  in  con- 
nection with  the  aiiairs  of  adjoining  countries,  the  probable  issue  of 
the  present  revolutionary  movements,  and  the  chances  we  may  have 
of  forming  conun(n-cial  arrangements  with  that  power  favorable  to  the 
United  States.'  Again,  in  the  same  paper,  it  is  said:  'The  object  of 
the  President  is  to  obtain  information  in  regard  to  Hungary,  and  her 
resources  and  prospects,  with  a  view  to  an  early  recognition  of  her  inde- 
pendence and  the  formation  of  connnercial  relations  with  her.-  It  was 
only  in  the  event  that  the  n(>w  goverimient  should  appear,  in  the 
opinion  of  the  agent,  to  be  lirm  and  stable,  that  the  President  proposed 
to  recommend  its  recognition. 

''  Mr.  Hiilsemann.  in  qualifying  these  steps  of  President  Taj'lor  with 
the  epithet  of  'hostile,'  seems  to  take  for  granted  that  the  inquiry 
could,  in  the  expectation  of  the  President,  have  but  one  result,  and 
that  favorable  to  Hungary.  If  this  were  so,  it  would  not  change  the 
case.  But  the  American  (rovernnKMit  sought  for  nothing  but  truth; 
it  desired  to  learn  the  facts  through  a  reliable  channel.  It  so  hap- 
pened, in  the  chances  and  \icissitudes  of  human  affairs,  that  the  result 
was  adverse  to  the  Hungarian  revolution.  The  American  agent,  as 
was  stated  in  his  instructions  to  l)e  not  unlikely,  found  the  condition 
of  Hungarian  affairs  less  pi-os})ei'()us  than  it  had  been,  or  had  beer 
believed  to  be.  He  did  not  enter  Hungary  nor  hold  any  direct  com- 
munication with  her  revolutionary  leaders.  He  reported  against  the 
recognition  of  her  iiuh^pendence  because  he  found  she  had  been  unable 
to  set  iq)  a  firm  and  stable  government.  He>  carefully  forbore,  as  his 
instructions  rcMjuired.  to  give  pul)licity  to  his  mission,  and  the  under- 
signed supposes  that  tlu^  Austi'ian  (iov»M"nment  first  learned  its  exist- 
ence from  the  connnunications  of  the  President  to  the  Senate. 

"•Mr.  Hiilsemann  will  observe  from  this  statement  that  Mr.  Mann's 
mission  was  wholly  un()bjecti()nal)l(\  and  strictly  within  the  rule  of  the 
law  of  nations,  and  the  duty  of  the  United  States  as  a  neutral  power. 
He  will  accordingly  fe(d  how  little  foundation  there  is  for  his  remark, 
that  "those  who  did  not  hesitat<'  to  assume  the  responsil)ility  of  send- 
ing Mr.  Dudley  Mann  on  such  an  eri'and,  should,  independent  of  con- 
sid(M"ations  of  propriety,  have  borne  in  mind  that  they  were  exposing 


§  72.]        ACTS  FALLING  SHOKT  OF  KECOGNITION.         231 

their  emissary  to  be  treated  as  a  spy.*  A  spy  is  a  person  sent  b}-  one 
belligerent  to  gain  secret  information  of  the  forces  and  defenses  of  the 
other,  to  be  used  for  hostile  purposes.  According  to  practice,  he  may 
use  deception,  under  the  penalty  of  being  lawfully  hanged  if  detected. 
To  give  this  odious  name  and  character  to  a  contidential  agent  of  a 
neutral  power,  bearing  the  commission  of  his  country,  and  sent  for  a 
purpose  fully  warranted  l>y  the  law  of  nations,  is  not  only  to  abuse 
language,  but  also  to  confound  all  just  ideas,  and  to  announce  the 
wildest  and  most  extravagant  notions,  such  as  certainly  were  not  to 
have  been  expected  in  a  grave  diplomatic  paper:  and  the  President 
directs  the  undersigned  to  say  to  Mr.  Hiilsemann  that  the  American 
Government  would  regard  such  an  imputation  upon  it  by  the  cabinet 
of  Austria,  as  that  it  employs  spies,  and  that  in  a  quarrel  none  of  its 
own,  as  distinctly  oti'ensive,  if  it  did  not  presume,  as  it  is  willing  to 
presume,  that  the  word  used  in  the  original  German  was  not  of  equiv- 
alent meaning  with  'spy'  in  the  English  language,  or  that  in  some 
other  way  the  employment  of  such  an  opprobrious  term  may  be 
explained.  Had  the  Imperial  Government  of  Austria  subjected  Mr. 
Mann  to  the  treatment  of  a  spy.  it  Avould  have  placed  itself  without 
the  pale  of  civilization,  and  the  cabinet  of  Vienna  may  be  assured  that 
if  it  had  carried,  or  attempted  to  carry,  any  such  lawless  purpose  into 
effect  in  the  case  of  an  authorized  agent  of  this  Government  the  spirit 
of  the  people  of  this  countrv  would  have  demanded  immediate  hostili- 
ties to  be  waged  by  the  utmost  exertion  of  the  power  of  the  Republic — 
militar}'  and  naval. 

•'Mr.  Hiilsemann  proceeds  to  remark  that  'this  extremely. painful 
incident,  therefore,  might  have  been  passed  over  without  any  written 
evidence  being  left  on  our  part  in  the  archives  of  the  United  States  had 
not  General  Taylor  thought  proper  to  revive  the  whole  subject  by  com- 
municating to  the  Senate,  in  his  message  of  the  18th  [jJSth]  of  last  March, 
the  instructions  with  which  Mr.  Mann  had  been  furnished  on  the  occa- 
sion of  his  mission  to  Vienna.  The  publicity  which  has  been  given  to 
that  document  has  placed  the  Imperial  Government  under  the  necessity 
of  entering  a  formal  protest,  through  its  official  representative,  against 
the  proceedings  of  the  American  Government  lest  that  Government 
should  construe  our  silence  into  approbation,  or  toleration  even,  of  the 
principles  which  appear  to  have  guided  its  action  and  the  means  it  has 
adopted.'  The  undersigned  reasserts  to  Mr.  Hiilsemann  and  to  the 
cabinet  of  Vienna,  and  in  the  presence  of  the  world,  that  the  steps 
taken  by  President  Taylor,  now  protested  against  by  the  Austrian 
Government,  were  warranted  by  the  law  of  nations  and  agreeable  to 
the  usages  of  civilized  states.  With  respect  to  the  communication  of 
Mr.  Mann's  instructions  to  the  Senate,  and  the  language  in  which  they 
are  couched,  it  has  already  been  said — and  ^Ir.  Hiilsemann  must  feel 
the  justice  of  the  remark — that  these  are  domestic  affairs,  in  reference  to 
which  the  Government  of  the  United  States  can  not  admit  the  slightest 


232  states:  recognition  and  continuity.  [§ 'J'^-, 

responsibilit}'  to  the  Government  of  His  Imperial  Majesty.  No  state 
deserving-  the  appellation  of  independent  can  permit  the  language  in 
which  it  may  instruct  its  own  officers  in  the  discharge  of  their  duties 
to  itself  to  be  called  in  question  under  any  pretext  by  a  foreign  power; 
but  even  if  this  were  not  so,  Mr.  Hiilsemann  is  in  error  in  stating 
that  the  Austrian  Government  is  called  an  'iron  rule'  in  Mr.  Mann's 
instructions.  That  phrase  is  not  found  in  the  paper,  and  in  respect  to 
the  honorary  epithet  bestowed  in  Mr.  Mann's  instructions  on  the  late 
chief  of  the  revolutionary  government  of  Hungary,  Mr.  Hiilsemann 
will  bear  in  mind  that  the  Government  of  the  United  States  can  not 
justly  be  expected,  in  a  confidential  conuuunication  to  its  own  agent,  to 
withhold  from  an  individual  an  epithet  of  distinction  of  which  a  great 
part  of  the  world  thinks  him  worthy  merely  on  the  ground  that  his  own 
Government  regards  him  as  a  rebel.  At  an  early  stage  of  the  American 
Revolution,  while  Washington  was  considered  by  the  English  Govern- 
ment as  a  rel)el  chief,  he  was  regarded  on  the  continent  of  Europe  as  an 
illustrious  hero;  l)ut  the  undersigned  will  take  the  liberty  of  bringing 
the  cabinet  of  Vienna  into  the  presence  of  its  own  predecessors,  and  of 
citing  for  its  consideration  the  conduct  of  the  Imperial  Government 
itself.  In  theyear  ITTT  the  war  of  the  American  Kevolution  was  raging 
all  over  these  United  States.  England  was  prosecuting  that  war  with 
a  most  resolute  determination,  and  ])v  the  exertion  of  all  her  military 
means  to  the  fullest  extent,  Germany  was  at  that  time  at  peace  with 
England,  and  yet  an  agent  of  that  Congress,  which  was  looked  upon  ])y^ 
England  in  no  other  light  than  that  of  a  body  in  open  rebellion,  was  not 
only  received  with  gr(>at  respect  by  the  embassador  of  the  Empress 
Queen  at  Paris,  and  l)y  tiie  minister  of  the  Grand  Duke  of  Tuscan}^ 
who  afterwards  mounted  the  imperial  throne,  but  resided  in  Vienna  for 
a  considerable  time — not,  indeed,  officially  acknowledged,  but  treated 
with  courtesy  and  respect,  and  the  Emperor  suffered  himself  to  be  per- 
suaded by  that  agent  to  exert  himself  to  prevent  the  German  powers 
from  furnishing  troops  to  England  to  enable  her  to  suppress  the  rebel- 
lion in  America.  Neither  ^Ir.  Hiilsemann  nor  the  cabinet  of  Vienna  it 
is  presumed  will  undertake  to  say  that  anything  said  or  done  by  this 
Government  in  regard  to  the  recent  war  l)etween  Austria  and  Hungary 
is  not  borne  out.  and  much  more  than  ])oi"ne  out,  b\'  this  example  of  the 
imperial  court.  It  is  believed  that  the  Emp(>ror,  Joseph  the  Second, 
habitually  spoke  in  terms  of  respect  and  admiration  of  the  character  of 
Washington,  as  he  is  known  to  have  done  of  that  of  Eranklm,  and  he 
deemed  it  no  infraction  of  neuti-ality  to  inform  himself  of  the  progress 
of  the  Kevolutionary  struggle  in  America,  nor  to  express  his  deep  sense 
of  the  merits  and  the  talents  of  those  illustrious  men  who  were  then 
leading  their  country  to  independence  and  renown.  The  undersigned 
may  add  that  in  1781  th«^  courts  of  Russia  and  Austi-ia  proposed  a  diplo- 
matic congress  of  th«^  belligerent  powers,  to  which  the  commissioners 
of  the  United  States  should  be  admitted. 


§  T2.]  ACTS    FALLING    SHORT    OF    RECOGNITION.  233 

"Mr.  Hiilsemann  thinks  that  in  Mr.  Mann's  instructions  improper 
expressions  are  introduced  in  regard  to  Russia.  1)ut  the  undersigned 
has  no  reason  to  suppose  that  Russia  herself  is  of  that  opinion.  The 
onl\^  observation  made  in  those  instructions  about  Russia  is  that  she 
'has  chosen  to  assume  an  attitude  of  interference,  and  her  immense 
preparations  for  invading  and  reducing-  the  Hungarians  to  the  ruh'  of 
Austria,  from  which  they  desii-e  to  be  released.  gav«>  so  serious  a  char- 
acter to  the  contest  as  to  awaken  the  most  painful  solicitude  in  the 
minds  of  Americans.'  The  undersigned  can  not  )>ut  consider  the  Aus- 
trian cabinet  as  unnecessarily  susceptilde  in  hx^king  upon  language  like 
this  as  a  '  hostile  demonstration.*  If  we  remem])er  that  it  was  addressed 
by  the  Govenmient  to  its  own  agent,  and  has  received  publicity  only 
through  a  conmiunication  from  one  Department  of  the  American  Gov- 
ernment to  another,  the  language  ([uoted  must  ))e  deemed  moderate  and 
inoftensive.  The  comity  of  nations  would  hardly  forbid  its  being 
addressed  to  the  two  imperial  powers  themselves.  It  is  scarcely  neces- 
sary- for  the  undersigned  to  say  that  the  relations  of  the  Tnited  States 
with  Russia  have  always  ])een  of  the  most  friendly  kind,  and  have  never 
been  deemed  by  either  party  to  require  any  compromise  of  their  pecu- 
liar vieVs  upon  subjects  of  domestic  or  foreign  policy  or  the  true  origin 
of  governments.  At  any  rate,  the  fact  that  Austria  in  her  contest 
with  Hungary  had  an  intimate  and  faithful  ally  in  Russia  can  not  alter 
the  real  nature  of  the  question  between  Austria  and  Hungary,  nor  in 
any  way  affect  the  neutral  rights  and  duties  of  the  Government  of  the 
United  States  or  the  justitiable  sympathies  of  the  American  people.  It 
is,  indeed,  easy  to  conceive  that  favor  toward  struggling  Hungar}' 
would  be  not  diminished.  ])iit  increased,  when  it  was  seen  that  the  arm 
of  Austria  was  strengthened  and  upheld  by  a  power  whose  assistance 
threatened  to  be,  and  which  in  the  end  proved  to  be,  overwhelmingly 
destructive  of  all  her  hopes. 

"Toward  the  conclusion  of  his  note  Mr.  Hiilsemann  remarks  that  'if 
the  Government  of  the  United  States  were  to  think  it  proper  to  take 
an  indirect  part  in  the  political  movements  of  Euro])e.  American 
policy  would  be  exposed  to  acts  of  I'etaliation  and  to  certain  incon- 
veniences which  would  not  fail  to  aii'ect  the  connnerce  and  industry  of 
the  two  hemispheres.'  As  to  this  possible  fortune — this  hypothetical 
retaliation — the  Government  and  people  of  the  United  States  are 
quite  willing  to  take  their  chances  and  abide  their  destiny.  Tak- 
ing neither  a  direct  nor  an  indirect  part  in  the  domestic  or  intestine 
movements  of  Europe,  they  have  no  fear  of  e\ents  of  the  nature 
alluded  to  by  Mr.  Hiilsemann.  It  would  be  idle  now  to  discuss  with 
Mr.  Hiilsemann  those  acts  of  retaliation  which  he  imagines  may  pos- 
sil^h"  take  place  at  some  indetinite  time  hereafter.  Those  (juestions 
will  be  discussed  when  they  arise,  and  Mr.  Hiilsemann  and  the  cabinet 
at  Vienna  may  rest  assurc^l  that,  in  the  meantime,  while  performing 
with  strict  and  exact  tidelitv  all    their  neutral    duties,   nothing  will 


234  states:  recognition  and  continuity.  [§  T2. 

deter  either  the  Govcrnnient  or  the  people  of  the  United  States  from 
exereisiiiii".  at  theii"  own  discretion,  tiie  rio-hts  belong-ing  to  them  as  an 
independent  nation,  and  of  formino-  and  expressing  their  own  opin- 
ions, freely  and  at  all  times,  upon  the  great  political  events  which 
may  transpire  among  the  civilized  nations  of  the  earth.  Their  own 
institutions  stand  upon  the  l)roadest  principles  of  civil  liberty,  and 
believing  those  principles  and  the  fundamental  laws  in  which  they 
are  embodied  to  be  eminently  favorable  to  the  prosperity  of  states — 
to  be.  in  fact,  the  only  principles  of  government  which  meet  the 
demands  of  the  present  enlightened  age — the  President  has  per- 
ceived with  great  satisfaction  that,  in  the  constitution  recently  intro- 
duced into  the  Austrian  Empire,  many  of  these  great  principles  are 
recognized  and  applied,  and  he  cherishes  a  sincere  wish  that  they  may 
produce  the  same  h:ippy  effects  throughout  his  Austrian  Majesty's 
e"tensive  dominions  that  they  have  done  in  the  United  Stfites.'' 

Mr.  Webster,  See.  of  State,  to  'Sir.  Hiilsemann,  Dee.  21,  1850,  S.  Ex.  Doc.  43, 
:n  Cong.  1  Se.-^s.;  Hr.  ct  For.  State  Papers,  XXXVIII.  (1849,  1850)  273; 
Webster's  Works,  VI.  401. 

A  fietitious  reply  to  tlie  note  of  ]\Ir.  Webster,  said  to  have  been  matle  by  Mr. 
Tliilseniann  July  4,  1851,  wa.s  published  in  some  of  the  Amerius^n  news- 
jiapers,  from  wliieh  it  was  reproduced  in  Lesur,  I'Annuaire,  1851,  p.  183, 
asautbentio.     (Lawrenee,  Com.  sur  les  Elements  du  Droit  Int.,  I.  204.) 

The  first  draft  of  ^Ir.  Webster's  note  appears  to  have  been  made  by  William 
Hunter,  for  many  years  an  honored  otiicial  of  the  Department  of  State. 
Subsecpiently,  another  draft  was  made  at  ^Ir.  Webster's  request  by 
Edward  Everett;  and  finally  Mr.  Webster,  with  these  two  drafts  before 
him,  ea.«t  the  note  into  the  form  in  whieh  it  became  liistorical.  (Curtis, 
Life  of  Webster,  II.  53;5-537. ) 

^Ir.  Rhodes  criticises  the  note  as  ' '  hardly  more  tlian  a  stump  speech  under  diplo- 
matic guise."  (History  of  the  United  States,  I.  206,  cited  in  Foster's  Cen- 
tury of  .American  Diplomacy,  331.)  Curtis,  in  his  Life  of  Daniel  Webster,  II. 
537,  observes  that  "there  are,  no  doubt,  passages  and  expressions  in  this 
letter  wliicli  are  in  a  tone  not  usual  with  ^Ir.  Webster  in  his  diplomatic 
papers;"  and  he  quotes  the  following  letter  written  by  ]\Ir.  Webster  to 
Mr.  Ticknoi',  Jan.  1»),  1851 :  "If  you  say  that  my  Hiilsemann  letter  is  lx)a*it- 
ful  and  rough,  I  shall  own  the  soft  inqieacliment.  My  excuse  is  twofqld: 
1.  I  thought  it  well  enough  to  speak  out,  and  tell  the  people  of  Europe  who 
and  what  we  are,  and  awaken  them  to  a  just  sense  of  the  unparalleled 
growth  of  this  country.  2.  I  wished  to  write  a  paper  which  should  touch 
the  national  pride,  and  make  a  man  feel  >i}tct']>is)i  and  look  .'((7/)/ \vho  should 
speak  of  disunion.  It  is  curious  enough,  l)ut  it  is  certain,  that  ^Ir.  Mann's 
private  instructions  were  seen,  somehow,  l)y  Schwartzenberg." 

When  the  corresj>ondence  was  laid  1)efore  the  Senate,  a  motion  to  print  10,000 
extra  copies  of  it  was  opposed  ])y  Mr.  Clay,  and  was  defeated  l)y  a  vote  of 
21  to  18.  Mr.  Clay  said  that  if  a  State  of  the  United  States  had  been  in 
revolt,  and  a  Enrojiean  government  had  .«ent  an  agent  on  such  a  mission 
as  that  of  Mr.  Mann,  it  would  liave  created  a  great  deal  of  feeling.  He 
therefore  doubted  the  soundness  of  Mr.  Webster's  contention  that  it  wa.s 
a  purely  domestic  transaction.  It  was  ])ul)lished  to  the  world.  Its  domes, 
tic  character  did  not  limit  its  jmblicity.  (Political  Science  Quarterly,  X. 
266.) 


§  T3.]  ACTS    FALLING    SHORT    OF   EECOGNITION.  235 

"As  regards  the  government  which  has  recently  been  set  up  by  the  white  set- 
tlers in  the  name  of  King  Thakomljau  [in  Fiji],  I  have  in  another  disjiateh 
informed  you  that  as  long  as  this  newly  constituted  government  exercises 
actual  authority  you  should  deal  with  it  as  a  de  facto  government,  so  far 
as  concerns  the  districts  which  may  acknowledge  its  rule,  but  that  Her 
Majesty's  Government  are  not  prepared  to  give  any  opinion  as  to  the  pro- 
priety of  formally  recognizing  it  without  much  fuller  informati(jn  as  to 
its  character  and  prospects."  (Earl  of  Kind^erly,  ("olynial  Secretary,  to 
the  Earl  of  Belmore,  November  3,  1871,  C.  509,  :March.  1872,  2.) 

2.  Of  New  (jovekxments. 

S  73. 

That   the    recognition  of    a   government    is  not    necessarily   to   be 

implied  from  the  fact  of  holding  connnunication, 
Unofficial  communi-      ,     , ,  ,  .^,  -^i      -^      •  •      •    i         ,. 

whether  oral  or  written,   with   it.   is   a    i)nncinle  of 
cations.  .  .  .  'I 

which  numerous  illustrations  may  l>e  found  in  the 
precedents  heretofore  di.sciissed.  in  connection  with  the  recognition  of 
new  governments;  and  the  same  principle  has  been  .seen  tobe  appli- 
cable to  intercourse  with  the  authorities  of  new  states  claiming  to  be 
recognized  as  independent.  In  the  ca.se  of  new  governments,  how- 
ever, a  situation  usually  exists  which  does  not  arise  in  the  ease  of 
new  states.  In  the  latter  case  special  agents  are.  where  there  is 
occasion  for  them,  employed,  since  the  dispatch  of  a  minister  to  a 
neAV  state  is  one  of  the  acts  from  which  its  recognition  is  neces.sarily 
implied;  but,  in  the  case  of  a  new  government,  the  question  of 
recognition  as  a  rule  practically  concerns  only  the  powers  that  have 
already  recognized  the  state  and  estal)lished  regular  diplomatic  rela- 
tions with  it.  There  has  thus  arisen  a  certain  right  of  diplomatic 
representation;  and  the  sending  of  a  new  minister  or  the  retention  of 
an  old  one,  while  it  implies  continued  recognition  of  the  state,  does 
not  constitute  a  recognition  of  the  new  government,  so  long  as  there 
is  no  formal  presentation  of  credentials  and  communications  bear  onl}" 
an  unofficial  character. 

This  distinction  is  tacitlv  assimied.  if  not  expressed,  in  some  of  the 
utterances  quoted  in  this  section. 

"This  Government  has.  and  it  must  insist  on,  the  right  to  determine 
for  itself  when  new  authorities,  established  in  a  foreign 
state,  can  claim  from  it  a  formal  recognition  of  them 
as  an  estal)Iished  power.  The  regulation  of  the  exercise  of  that  right 
upon  principles  of  justice  and  according  to  facts  established,  with  an 
aV)sence  of  all  favor  and  caprice,  is  hardly  more  important  to  the 
universal  interests  of  society  than  it  is  to  those  of  the  Tuited  States 
themselves. 

"This  Government  has,  at  the  same  time  under  the  law  of  nations 
and  by  treaty,  a  ch^ar  right  to  have  its  properly  apjjointed  agents  resid- 
ing in  Venezuela,  although  the  authorities  with  which  it  has  heretofore 


236  states:  recognition  and  continuity.  [§  73. 

ti-e!it(>d  hav(»  l)oeii  sii])verted,  more  or  less  completel}',  and  to  communi- 
c'rtto  with  the  new  authorities  upon  international  matters  affecting  either 
the  (Jovernment  of  the  United  States  or  its  citizens.  During  the  period, 
which,  in  case  of  any  domestic  revolution,  may  be  either  short  or  long, 
the  agtMits  of  this  Government  have  a  right  to  confer  upon  such  matters 
with  the  actual  authorities  who  are  conducting  the  affairs  of  Venezuela, 
and  wliile  the  agent  is  }>ound  to  avoid  all  interference  in  the  domestic 
questions  of  that  state,  he  is  entitled  to  be  heard  as  the  representative 
of  th(^  United  States,  without  a  previous  recognition  of  the  existing 
authorities,  in  place- of  those  which  have  ])een  either  more  or  less 
effectually  su])])lanted.'"' 

Mr.  Scwar.l,  Sec.  of  State,  to  Mr.  Culver,  Mar.  9,  1868,  MS.  Inst.Venez.  I.  266. 

When  in  the  autumn  of  1863  Mr.  Bruzual  arrived  in  Washington  as 
the  diplomatic  representative  of  Venezuela  appointed  by  the  new 
Falcon  government,  he  was  '"  informed  that  the  existing  government 
of  \"enezu(>la  was  not  considered  to  be  con.solidated  enough  to  warrant  a 
compliance  with  his  request  [to  present  his  credentials]  at  present.  It 
was  added,  however,  that  he  might  be  expected  to  enjoy  any  privileges 
and  immunities  incident  to  his  official  character  which  were  usually 
extended  to  diplomatic  agents  of  friendly  powers  under  similar 
circumstances." 

:Mr.  Seward,  See.  of  State,  to  :\Ir.  Culver,  Oet.  21,  1868,  MS.  lust.  Veuezuela, 
I.  2S8.     See  supra,  loO. 

''Senor  Agusto  F.  Pulido,  charge  of  the  Venezuelan  legation,  called 
at  the  Department  yesterday  afternoon  to  make  oral  announcement 
that,  under  instructions  from  the  Venezuelan  minister  of  foreign 
affairs,  who  appears  to  be  the  same  person  formerly  in  President 
Andrade's  cabinet,  the  charge  d'affaires  and  consuls  of  Venezuela  in 
the  United  States  are  continued  in  the  exercise  of  their  functions  until 
further  notice. 

"Mr.  Pulido  was  thereupon  told  that  this  Government  would  simply 
ignore  the  fact  of  a  change  of  government  in  Venezuela  until  the 
question  of  its  recognition  should  ])e  raised  l)y  formal  aiuiouncement 
and  request  to  that  end,  and  that  the  Department  would  in  the  mean- 
time conduct  all  neces.sary  diplomatic  business  with  Senor  Pulido  pre- 
cisely the  same  as  if  no  change  had  occurred  in  the  home  government." 

Mr.  Hay,  Secretary  of  State,  to  Mr.  Looini.s,  Minister  to  Veuezuela,  November 
18,  1899,  For.Rel.  1899,  809. 

It  has  been  seen  that  Mr.  Seward,  in  narrating  his  refusal  informally 

to  receive  an  agent  of  Maximilian,  stated  that  it  was 

the  rule  of  the  United  States  ''  to  hold  no  interview, 

public  or  private,  with  persons  coming  from  any  coimtry,  other  than 

the  agfcnts  dulv  accredited  bv  the  authoritv  of  that  countrv  which  is 


§  'S'3.]  ACTS    FALLING    SHOKT    OF    RECOGNITION.  237 

recognized  by  this  Government."  (Dip.  Cor.  1865,  III.  37S;  supra, 
210. )  The  emissaries  whom  he  declined  to  see  were  as  a  rule  the  enemies 
of  recognized  governments.  On  one  occasion,  however,  in  the  case 
of  a  revolution  in  Salvador,  he  so  extended  the  principle  on  which  he 
acted  as  to  include  the  representative  of  parties  in  "  armed  opposition  " 
to  a  government  which,  though  he  describes  it  as  "actually  existing," 
he  had  refused  to  recognize.  The  representative  in  question  Avas  the 
head  of  the  government  that  had  just  been  overthrown.  The  repre- 
sentative of  the  new  but  unrecognized  government  was  admitted  to 
unofficial  relations. 

"While  this  government  does  not  intend  or  desire  to  (piestion  the 
rightfulness  or  the  stability  of  the  government  now  provisionally 
existing  in  Salvador,  *  *  *  it  does  not  find  itself  at  liberty  to  make 
a  formal  recognition  at  the  present  moment  of  that  provisional  gov- 
ernment. The  United  States  will  at  present  watch  and  wait  for  the 
permanent  reestablishing  of  government  in  Salvador,  interpreting  as 
favorably  as  possible  all  the  proceedings  that  shall  take  place  there 
with  a  view  to  that  great  end.  In  the  meantime,  there  being  no  other 
person  in  the  United  States  claiming  to  represent  Salvador,  all  com- 
numications  Mr.  Yrisarri  [who  had  su])mitted  credentials  as  minister 
of  the  new  government]  may  have  occasion  to  make  to  this  govern- 
ment will  ])e  received  unofficially  and  have  respectful  attention.  You 
will  unofficialh'  conmiunicate  this  information  to  the  provisional  Pres- 
ident, and  until  vou  shall  receive  further  instructions,  will  not  claim 
to  be  officially  and  formally  recognized  by  him." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Partridge,  minister  to  Salvador,  Jan.  2,  1864, 
MS.  Inst.  American  States,  XVI.  399. 

"We  shall  await  with  calmness  and  good  will  the  action  of  the  people 
of  Salvador  in  recognizing  their  government. 

"Mr.  Barrios,  the  exiled  President  of  that  Repul)lic,  has  requested 
an  interview  with  me.  1  have  declined  it  as  1  invaria])ly  do  to  hold 
interviews  with  persons  who  come  hither  to  represent  parties  who  are 
in  armed  opposition  to  the  government  actually  existing  in  countries 
with  which  the  United  States  are  at  peace. 

"This  (iovcrnment  will  maintain  a])s()lute  non-intervention  in  foreign 
wars  and  will  not  suffer  the  neutrality  laws  to  be  violated." 

Ml-.  Seward,  Sec.  of  State,  to  INIr.  Partridge,  minister  to  Salvador,  No.  '.U,  Jan. 
29,  1864,  MS.  Inst.  Am.  States,  XVI.  415. 

During  the  period  of  more  than  a  year,  when,  owing  to  the  existence 
of  disorders  on  the  Rio  (rrande  frontier,  formal  recog- 
nition was  withheld  from    the   newly  installed    Diaz 
government  in  Mexico,  diplomatic   correspondence    was   carried   on 
through  the  usual  channels  on  all  matters  arising  between  the  two 
countries,  President  Hayes,  in  his  annual  message  of  December  3, 1877, 


238  states:  recognition  and  continuity.  [§  73. 

■sayino-.  "It  is  gratifying  to  add  that  this  temporary  inteiTuption  of 
official  relations  has  not  prevented  dm»  attention  by  the  representatives 
of  the  United  States  in  Mexico  to  the  protection  of  American  citizens, 
so  far  as  practicable.  Nor  has  it  interfered  with  the  prompt  payment 
of  the  amounts  due  from  Mexico  to  the  Tnited  States  under  the  treaty 
of  July  4.  1868,  and  the  awards  of  the  joint  commission." 

In  July.  1865.  Mr.  Louis  de  Arroyo  i)ublished  in  a  newspaper  in 
the  city  of  New  York  a  decree  of  the  government  of 
Consular  functions.  Maximilian  in  Mexico,  stating  that  it  pertained  to  the 
consuls  and  vice-consuls  of  the  empire  to  legalize 
invoices  and  manifests  of  merchandise  for  Mexican  ports,  as  well  as 
all  documents  required  by  the  laws  to  be  legalized;  and  that  the 
agents  appointed  by  "the  administration  of  Don  Benito  Juarez"  were 
to  discontinue  their  functions,  since  that  administration  came  to  end 
on  Juh"  31,  1863.  This  decree  was  addressed  by  the  imperial  treasury 
to  Mr.  Arroyo  as  •'consul,  acting  as  commercial  agent.  New  York." 
It  was  brought  to  the  attention  of  Mr.  Seward  by  the  Mexican  minis- 
ter at  Washington,  who  inquired  (I)  whether  Maximilian  was  consid- 
ered to  have  the  right  to  appoint  commercial  agents  who  should  exer- 
cise the  functions  of  consuls  in  the  United  States,  and  (2)  whether 
such  agents  could  "exercise  the  functions  of  consuls,  not  only  without 
a  formal  r.i'etpi.atui\  but  also  without  any  other  sort  of  permission  or 
recognition  from  the  Government  of  the  United  States."  Mr.  Seward 
replied : 

"Thits  department  is  not  aware  of  any  law  of  the  United  States 
which  forbids  a  person  claiming  to  be  a  consul  of  a  foreign  power 
from  making  on  his  own  responsiV)ility  a  publication  of  the  character 
to  which  3'ou  refer. 

'"It  can  not  be  necessary  for  me  to  repeat  what  has  uniformlv  been 
said  by  this  government  in  all  its  official  correspondence,  that  no  other 
than  the  republican  governmojit  in  Mexico  has  been  recognized  by  the 
United  States.  You  are  aware,  however,  that  the  party  in  arms 
against  that  government  is.  and  for  some  time  past  has  been,  in  pos- 
session of  some,  at  least,  of  the  ports  of  ^lexico.  That  possession 
carries  with  it.  for  the  time  being,  a  power  to  prescribe  the  terras  upon 
which  foreign  commerce  may  be  carried  on  with  those  ports.  If,  as  is 
presumed  to  be  the  case,  one  of  those  conditions  is,  that  tiie  invoices 
and  manifests  of  vessels  from  abroad,  bound  to  those  ports,  must  be 
certified  by  a  commercial  agent  of  tiie  party  in  possession,  residing  in 
the  port  of  the  foreign  country  from  which  the  vessel  mav  proceed,  it 
is  not  perceived  what  effective  measures  this  government  could  prop- 
erly take  in  the  premises.  Such  a  conuneix-ial  agi'nt  can  perform  no 
consular  act  relating  to  the  atfaii's  of  his  countrymen  in  the  United 
States.     To  prohibit  hira  from  attesting  invoices  and  manifests,  under 


§  T3.]  ACTS    FALLING    SHORT    OB'    EECOGNITION.  239 

the  circumstances  referred  to,  ^yould  be  tantamount  to  an  interdiction 
of  trade  between  the  United  States  and  those  Mexican  porrs  whicli  are 
not  in  possession  of  the  republican  government  of  that  country.  The 
consuls  of  the  United  States  in  Mexico,  who  have  their  exeijuaturs 
from  that  o-overnment  only,  themselves  discharge  duties  as  commercial 
agents  in  the  ports  which  are  not  undei-  the  control  of  that  govern- 
ment in  all  respects  like  those  which  the  person  Arroyo,  in  the  same 
way  and  to  the  same  extent,  claims  to  do  at  New  York  in  respect  to 
said  ports. " 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Romero,  ^Mexican  minister,  Au<r.  9,  1S65, 
Dip.  Cor.  1865,  III.  486-488. 

"I  have  received  your  Nos.  44  and  47,  of  the  14th  and  ITth  ultimo, 

respectivelv.     Thev  relate  to  the  political  disturbances 

Nicaragua.         •      x--  "       .         ^  <•     i       •  •  .      ^ 

in  Nicaragua  in  consequence  or  the  imprisonment  of 

President  Machado  and  the  minister  for  foreign  atfairs  at  Leon,  and 

report  the  circumstances  under  which  General  Zavala  was  proclaimed 

Dictator. 

"In  reply  I  desire  to  state  that  the  shifting  course  of  present  events 
in  Nicaragua  precludes  any  positiv^e  instructions  looking  to  the  recog- 
nition of  aiw  one  party  as  the  dominant  Government  of  the  liepublic. 
The  long  established  rule  of  the  United  States  is  to  maintain  relations 
with  the  power  having  control  of  the  public  machinery  of  government 
with  the  assent  of  the  people,  and  administering  the  functions  of  the 
State. 

"Your  present  dispatches  and  the  later  telegraphic  reports  pub- 
lished in  the  press  do  not  indicate  such  a  stable  retention  of  public 
power  as  to  warrant  formal  action  by  the  United  States  in  recognition 
of  a  government  in  Nicaragua  as  being  titular  and  effective.  In  such 
case  the  minister  should  remain  in  intercourse  with  the  authorities  in 
control  of  the  seat  of  government,  looking  to  them  for  the  protection 
of  the  interests  of  American  citizens. 

"To  avert  embarrassments  in  dealing  with  evenly-])alanced  factions, 
alternating  in  power  or  succeeding  thereto  in  the  clianges  of  civil  con- 
test, the  minister's  tact  should  be  exercised  to  confine  his  relations 
with  the  ascendant  authority  to  (questions  affecting  the  pid)lic  interests 
of  the  United  vStates  and  the  security  of  American  life  and  property  in 
Nicaragua,  thus  giving  to  his  intercourse  a  provisional  and  de  facto 
character,  Avithout  sympathetic  leaning  to  either  side,  and  without 
prejudice  to  the  fullest  lil)ertv  on  the  part  of  the  United  States  to 
declare  formal  recognition  of  the  government  which  shall  eventually 
establish  itself  on  a  firm  basis  and  effectively  administer  the  affairs  of 
the  state  and  insure  orderly  respect  for  its  acts  l)y  the  people  of  the 
nation.'' 

Mr.  Gresham,  Secretary  of  State,  to  Mr.  I'aker,  mini.«ter  to  Nicaragua,  August 
15,  1893,  For.  Rel.,"  1893,  212. 


240  states:  recognition  and  continuity.  [§  73. 

••I  have  the  honor  to  acknowledf^e  the  receipt  of  your  letter  of  the 
ilTth  ultimo  reportino;  that  yvu  have  received  an  inquiry 

an  0  omingo.  ^^0111  the  commanding  officer  of  the  U.  S.  S.  Sashvi/le, 
asking  whether  this  Government  recognizes  the  existing  government 
in  the  Dominican  Republic  and  whether  he  should  tire  the  customar}' 
salute  at  San  Domingo  City. 

•"In  reply.  I  have  the  honor  to  say  that  no  political  recognition  of 
the  revolutionary  Government  of  Santo  Domingo  has  yet  been  effected. 
Until  the  United  States  charge  d'affaires  shall  under  suitable  instruc- 
tions notify  the  existing  government  of  that  country  that  he  enters 
into  diplomatic  relations  with  it.  its  existence  is  mereh*  a  matter  of 
common  notoriety,  while  its  unopposed  exercise  of  power  warmntsthe 
transaction  of  necessary  affairs  by  local  agents  of  the  United  States 
with  the  <^///''/r?'^/ authorities.  A  salute  does  not  appear  to  be  neces- 
sary unless  by  way  of  courteous  resi)onse  to  one  -first  given  by  the 
local  authorities." 

Mr.  Hay,  Sec.  of  State,  tf>  the  Seeretary  of  the  Navy,  Octol>er  2,  1899,  240 
M.<.  Dom.  Let.  'So'o. 

The  <ineption  <>f  f^ahites,  ])en(lincr  an  in.-^urrection,  )>ecame  the  subject  of  official 
action  l)y  the  United  States  during  the  naval  revolt  in  Brazil  in  LS93.  On 
the  20th  of  October  in  that  year,  CV>minodore  O.  F.  Stanton,  U.  S.  N., 
then  in  command  of  the  United  States  naval  forces  on  the  South  Atlantic 
Station,  arrived  in  his  flajrsliip  at  Rio  de  Janeiro.  On  entering  the  port 
he  saluted  the  flag  of  Brazil  with  21  guns,  his  .salute  being  returned  by  a 
Government  fort.  Insi<le  the  harlKir  lay  the  ve,s.«els  in  revolt,  under  the 
command  of  Rear-Admiral  Mello.  of  the  Brazilian  navy,  who  flew  from 
his  flagship,  the  A'jiii'l'ifxiii,  the  Brazilian  flag.  After  coming  to  anchor, 
Comm<Mlore  Stanton  received  a  visit  from  Admiral  Mello's  aide,  and 
causefl  it  to  l>e  returned.  SuV)sequently  he  saluted  Admiral  Mello  with  13 
guns,  the  salute  l>eing  returned,  and  next  day  he  called  upon  the  admiral, 
who  returne<l  his  visit.  No  call  had  then  Ix-en  received  by  Commodore 
Stanton  fr<»m  any  Brazilian  official  on  shore.  The  Brazilian  Government 
complained  of  his  action,  and  he  was  detached  from  his  command  and 
ordered  home.  In  cxjilanation  of  Lis  course,  he  stated  that  his  object 
wjis  merely  to  c()mplete  the  s;ilute  usually  fired  in  honor  of  a  nation  on 
arriving  in  one  of  its  ports;  that,  although  he  wsa^  aware  that  the  titular 
government  had  by  a  decree  of  October  10  with<lrawn  from  the  vessels 
in  revolt  the  protection  of  the  national  flag,  he  regarded  the  A'fiidafHin 
as  a  Brazilian  man-of-war.  the  flagship  of  an  admiral,  and  the  projierty 
of  the  Brazilian  nation,  whichever  party  might  win  in  the  }>ending  con- 
flict; that  Mello  was  in  fact  referred  to  in  the  decree  a-s  "  rear-admiral," 
an<l  on  the  exchange  of  visits  wore  the  uniform  of  a  Brazilian  naval  officer 
of  that  rank;  that  the  salute  was  intende<l  not  as  a  recognition  of  the 
revfilt,  but  merely  as  an  honor  to  the  Brazilian  flag,  Mello  being  the  only 
Brazilian  admiral  afloat.  The  Navy  Dejiartment,  however,  held  that 
Commodore  Stanton's  action  violate*!  article  115  of  the  U.  S.  Navy  Regu- 
lations, 1S9.'>.  which  provides  that  "no  salute  shall  l>e  fired  in  honor  of  any 
nation  *  *  *  not  formally  recognized  by  the  (Jovernment  of  the 
Unitetl  States;"  that  his  first  salute  of  the  Brazilian  flag  and  its  return  by 


§T3.]  ACTS    FALLING    SHORT    OF    RECOGNITION.  241 

the  Government  fort  satisfied  all  the  requirements  of  courtesy  to  Brazil  as 
a  nation;  that,  as  it  was  known  that  the  United  States  had  not  recognized 
Admiral  Mello  and  his  forces  as  entitled  to  Ijelligerent  rights,  it  was  not 
material  that  he  was  referred  to  as  a  rear-admiral  or  was  dressed  in  the 
uniform  of  that  rank;  that  a  course  of  reasoning  which  held  that  a  gov- 
ernment or  a  flag  gave  status  to  an  ofhcer  in  spite  of  what  he  or  his  govern- 
ment might  do,  was  manifestly  not  sound;  and  that  neither  tlie  use  of  the 
Brazilian  uniform  nor  the  flying  of  the  Brazilian  fiag  could  give  Admiral 
Mello  an  official  status,  as  he  was  using  both  in  opposition  to  the  recog- 
nized government.  The  Navy  Department  therefore  decided  that  Com- 
modore Stanton  had  committed  a  "grave  error  of  judgment,"  but  as  he 
had  done  no  intentional  wrong,  and  as  the  complaint  of  Brazil  had  been 
satisfied,  placed  him  in  charge  of  the  North  Atlantic  Station,  with  a  prom- 
ise subsequently  to  restore  him  to  the  conunand  from  which  he  was 
detached.  (Sec.  of  Navy  to  Commodore  Stanton,  tel.,  Oct.  23,  1893;  Com- 
modore Stanton  to  Sec.  of  Navy,  tel.,  Oct.  25,  1893;  Sec.  of  Navy  to 
Commodore  Stanton,  tel.,  Oct.  25,  1893;  Conunodore  Stanton  to  Sec.  of 
Navy,  Dec.  6,  1893;  Sec.  of  Navy  to  Commodore  Stanton,  Dec.  7,  1893; 
Commodore  Stanton  to  Sec.  of  Navy,  Dec.  7,  1893;  Sec.  of  Navy  to  Com- 
modore Stanton,  Dec.  21,  1893;  MSS.  Navy  Department.) 

In  the  course  of  his  explanation.  Commodore  Stanton  stated  that  he  had  teen 
informed  by  Commodore  McCann,  A\ho  commanded  the  United  States 
naval  forces  on  the  Pacific  Station  during  a  part  of  the  insurrection  in 
Chile  in  1891,  that  his  flag  was  saluted  l)y  a  Chilean  commodore  and  that 
he  returned  the  salute,  and  that  one  of  the  P^nglish  men-of-war  saluted 
the  Chileans  in  revolt  with  21  guns  before  the  final  triumpli  of  the  Congres- 
sionalists.  With  reference  to  this  statement  the  Navy  Deimrtment  said: 
"  I  have  examined  into  this  matter  and  it  does  not  appear  that  this  action 
on  the  part  of  Commodore  McCann,  or  of  other  officers  who  may  have 
given  like  salutes  to  Chilean  vessels  in  revolt  at  that  time  was  ever  approved 
by  the  Department,  or  that  it  was  ever  brought  to  its  attention,  unless 
such  "inference  may  be  drawn  from  the  fact  that  the  new  Regulations  of 
the  United  States  Navy,  promulgated  FeV)ruary  2-5,  1893,  contained  for 
the  first  time  the  regulation  providing  that  '  No  salute  shall  be  fired  in 
honor  of  any  nation  not  formally  recognized  by  the  Government  of  the 
United  States. '  It  is  not  to  be  supposed  that  the  Department  when  insert- 
ing this  article  in  the  Regulations  believed  that  a  naval  officer  of  the 
United  States  would  fire  a  salute  to  a  naval  officer  in  revolt  against  his 
government,  and  then  claim  that  the  salute  was  really  in  honor  of  the 
government  against  which  the  officer  and  his  forces  were  at  war."  (Mr. 
Herbert,  Sec.  of  Navy,  to  Commodore  Stanton,  Dec.  21,  1893,  ^NISS.  Navy 
Dept. ) 

The  only  case  which  the  editor  has  been  able  to  find  in  the  British  official 
publications  of  a  salute  to  an  insurgent  officer  during  the  insurrection  in 
Chile  is  as  follows:  On  January  26,  1891,  Rear-Admiral  Hotham  arrived 
in  H.  B.  M.  S.  Warspite  at  Iquique.  He  found  there  the  Chilean  cruiser 
Almirante  Cochrane,  which  was  engaged  in  a  nominal  blockade  of  the  port. 
The  Almirante  Cochrane  was  one  of  the  vessels  then  in  revolt  against  the 
government  of  President  Balmaceda.  She  saluted  Admiral  Hotham's  flag 
with  13  guns,  "and,"  said  Admiral  Hotham,  "as  it  was  a  personal  salute 
1  returned  it  with  the  same  number."  (Blue  Book,  Chile,  No.  1,  1892, 
p.  4.5. ) 

H.  Doc.  551 16 


242  states:  recognition  and  continuity.  [§T4. 

3.  Of  Belligekexcy 

S  74. 

Since  ev^ery  civ^il  war,  Jis  was  ol^served  by  the  Supreme  Court  in  the 
Prize  (J<(xes,  begins  in  insurrection,  and  since  insur- 
nsurgency    or  j.g^.j|Qj^y  generally  atlect  to  a  greater  or  less  extent  the 
"revolt.  .  .    '  .         ,  .  .«    . 

interests  of  aliens,  and  m  this  way,  if  in  no  other, 

compel  the  consideration  and  action  of  foreign  governments,  some 
progress  appears  to  have  been  made  toward  the  definition  of  the  actual 
condition  of  things  intermediate  between  peace  and  recognized  civil 
war,  as  a  state  of  ''insurgency"  or  "revolt.""  It  doubtless  will  have 
been  observed  that,  although  the  mere  admission  of  insurgent  ships 
into  the  ports  of  the  United  Stites  in  1815  seems  then  to  have  been 
considered  as  a  recognition  of  the  belligerency  of  the  South  American 
governments,  yet  Mr.  Bancroft  Davis,  speaking  for  the  Department  of 
State  in  lS()t>.  with  reference  to  the  Cuban  insurrection  then  prevail- 
ing, said  that  Mexico,  while  she  had  authorized  the  Cuban  flag  to  be 
received  in  her  ports,  had  "  not  recognized  a  state  of  belligerenc}."''' 
This  modification  or  development  of  view  may  be  ascri))ed  to  the 
elaboration  in  the  meantime  of  rules  for  the  precise  definition  of  bel- 
ligerent rights  and  disabilities  and  for  the  discharge  of  neutral  duties, 
such  as  that  limiting  the  stay  and  the  privileges  of  men-of-war  of 
belligerents  in  neutral  ports. 

Perhaps  the  clearest  recognition  of  the  state  of  insurgency  or  revolt 
as  a  distinctive  condition  may  be  found  in  the  case  of  the  Cuban 
insurrection  of  1895-18US.  June  1:^,  18l>:»,  the  President  of  the  United 
States  issued  a  proclamation  reciting  that  Cuba  was  ''the  seat  of  civil 
disturbances,  accompanied  by  armed  resistance  to  the  authority  of  the 
established  Government  of  Spain,"  and  admonishing  all  persons  within 
the  jurisdiction  of  the  United  States  to  aV)stain  from  taking  part  in  the 
disturbances  adversely  to  that  Government,  by  doing  an}'  of  the  acts 
prohibited  by  the  neutrality  laws.'  In  his  annual  message  of  December 
2, 1895,  he  stated  that  Cu))a  was  '•greatly  disturbed,"  and  described  the 
condition  of  things  as  an  ""insurrection."  a  '"flaorant  condition  of  hos- 
tilities,"anda  "sanguinary  and  fiercely  conducted  war."  Jul}' 27, 1896, 
he  issued  another  proclamation,  referring  again  to  the  civil  disturb- 
ances in  the  island  and  the  provisions  of  the  neutrality  laws.'^  In  his 
annual  message  of  December  7.  1806,  he  stated  that  "the  insurrection 
in  Cuba  still  continues  with  all  its  perplexities,"  and  reviewed  the  situa- 
tion at  length.     With  reference  to  these  facts  the  Supreme  Court  said: 

"The  distinction  between  recognition  of  belligerency  and  recogni- 
tion of  a  condition  of    political  revolt,  between  recognition  of  the 

«  See  Albany  Law  Journal,  Feb.  13,  1886,  125.  <•  29  Stat.  871. 

b  Supra,  194.  rf  29  Stat.  881. 


§  T^.]  RECOGNITION,   BY  WHOM    DETERMINABLE.  248 

existence  of  war  in  the  material  sen.se  and  of  war  in  a  leg-al  sense,  is 
sharply  illustrated  by  the  case  before  us.  For  here  the  political 
department  has  not  recognized  the  existence  of  a  (frfdcfo  ])ellioerent 
power  engaged  in  hostility  with  Spain,  ))ut  has  recogniz(>d  tlie  existence 
of  insurrectionary  warfare  prevailing  ])eforo,  at  the  time  and  since  this 
forfeiture  is  alleged  to  have  been  incurred.  '•■  ■•  *  We  are  thus 
judicialh'  informed  of  the  existence  of  an  actual  conflict  of  arms  in 
resistance  of  the  authority  of  a  Government  with  which  the  Tnited 
States  are  on  terms  of  peace  and  amity,  although  acknowledgnuMit  of 
the  insurgents  as  belligerents  by  the  political  department  has  not  taken 
place;  and  it  can  not  be  doubted  that,  this  being  so,  the  act  in  question 
[the  neutrality  statute]  is  applicable."^' 

'•'I  have  to  acknowledge  the  receipt  of  your  Nos.  !»tj,  of  Januarv  26; 
91,  of  February  1;  92,  of  February  3,  and  93,  of  February  10  last, 
reporting  the  serious  condition  of  affairs  at  La  Paz  and  in  the  sur- 
rounding country. 

"  You  will  understand  that  \o\i  can  have  no  diplomatic  relations  with 
the  insurgents  implving  their  recognition  by  the  United  States  as  the 
legitimate  Government  of  Bolivia,  but  that,  short  of  such  recognition, 
you  are  entitled  to  deal  with  them  as  the  responsil)le  parties  in  local 
possession,  to  the  extent  of  demanding- for  A^ourself,  and  for  all  Ameri- 
cans within  reach  of  insui-gent  authority  within  the  territory  con- 
trolled by  them,  fullest  protection  for  life  and  property. 

''If  the  situation  at  La  Paz  becomes  unendurable  or  more  perilous, 
you  should  collect  all  Americans  within  reach  and  quit  that  city, 
taking  them  with  you  demanding  adequate  escort  to  the  nearest  i)lace 
of  safety.'' 

Mr.  Hay,  Sec.  of  State,  to  Mr.   Biidgnian,   miii.  to  Bolivia,  March 
14,  1899,  For.  Rel.,  1899,  105. 

VI.  RECOGNITION,  BY  WHOM  DETERMINABLE. 

§  75. 

In  the  preceding  review  of  the  recognition,  respecrively.  of  new 

states,  new  governments,  and  belligerency,  there  has 

,    ^  been  made  in  each  case  a  precise  statement  of  facts, 

edents.  ,  >-  ,  .  ' 

showing    how    and    ])v    whom    the    recognition    was 
accorded.     In  every  case,  as  it  appears,  of  a  new  government  and  of 

"The  Three  Friends  (1897),  166  U.  S.  63-04,  6.")-60.  In  obtaining  the  relea^^e  of 
Spanish  prisoners  from  the  insnrgents  in  the  Phihppines,  pursuant  to  Article  VI.  of 
the  treaty  of  peace  between  the  United  States  and  Spain  of  December  10,  1898,  a 
difficulty  was  raised  by  the  insurgents  insisting  that  Spanish  vessels  sent  to  receive 
the  surrender  of  the  prisoners  should  fly  the  Spanish  flag  as  a  sign  of  recognition. 
To  meet  the  difficulty,  the  United  States  suggested  that  the  vessels  should  fly  the 
Geneva  Red  Cross  flag.     (For.  Rel.  1899,  689-691.) 


244  states:  recognition  and  continuity.  [§  75. 

belligoroncv,  tlio  question  of  recognition  was  determined  solely  b}'  the 
Executive.  In  the  case  of  the  Spanish-Anierican  republics,  of  Texas, 
of  Ilavti,  and  of  Lil)eria,  the  President,  l)efore  recognizing  the  new 
state,  invoked  the  judgment  and  cooperation  of  Congress;  and  in  each 
of  these  cases  provision  was  made  for  the  appointment  of  a  minister, 
which,  when  made  in  due  form,  constitutes,  as  has  been  seen,  accord- 
ing to  the  rules  of  international  law,  a  formal  recognition.  In  numer- 
ous other  ca.ses,  the  recognition  was  given  bv  the  Executive  solely  on 
his  own  responsi])ility.  The  question  of  the  power  to  recognize  has, 
however,  been  specifically  discussi^l  on  various  occasions. 

January  1^  1S1*,>,  a  discussion  took  place  in  the  Cabinet  of  Monroe 

on  a  draft  by  ]\Ir.  Adams,  as  Secretfiry  of  State,  of  an 
Spanish-American   •      ,         ,.         1      at       u      i  •         j.i        t-»        •  i      ^^ 

mstruction  to  jNlr.  Kusli  announcing  the   President  s 
states.  .  .  .  ^^    . 

intention  at  no  remote  period  to  recognize  the  govern- 
ment of  Buenos  Ayres.  A  question  arose  as  to  the  form  of  recogni- 
tion. Mr.  Crawford  said  that  if  an  acknowledgment  was  to  take  place 
he  should  prefer  to. make  it,  not  by  granting  an  exequatur  to  a  consul, 
but  by  sending  a  minister  there,  because  the  Senate  must  then  act 
upon  the  nomination,  which  would  give  their  sanction  to  the  measure. 
Mr.  Wirt  added  that  the  House  of  Representatives  must  also  concur 
by  assenting  to  an  act  of  appropriation.  The  President,  laughing, 
said  that  as  those  l)odies  had  the;  power  of  impeachment  it  would 
be  convenient  to  have  them  thus  pledged  ])eforehand.  Mr.  Adams 
observed  that  his  "  impressions  were  altogether  different.  I  thought 
it  not  consistent  with  our  national  dignity,'"  said  Mr.  Adams,  ''to  be 
the  first  in  sending  a  minist(u-  to  a  new  power.  It  had  not  been  done 
by  any  European  power  to  ours(dves.  *  "  *  As  to  impeachment, 
I  was  willing  to  take  my  shari;  of  risk  of  it  for  this  measure  whenever 
the  Executive  should  deem  it  proper.  And,  instead  of  admitting  the 
Senate  or  House  of  Representatives  to  any  share  in  the  act  of  recog- 
nition, I  would  expressly  avoid  that  form  of  doing  it  which  would 
require  thc^  concurrence  of  those  l)odies.  It  was,  I  had  no  douljt,  by  our 
Constitution  an  act  of  the  Executive  authority.  General  Washington 
had  exercised  it  in  recognizing  the  French  Republic  l)y  the  reception 
of  Mr.  Cenest,  INlr.  Madison  had  exercised  it  by  declining  several 
years  to  receive,  and  by  finally  receiving,  Mr.  Onis;  and  in  this  instance 
I  thought  the  Jlxecutive  ought  caivf ully  to  preserve  entire  the  authority 
given  him  by  the  Constitution,  and  not  weaken  it  In^  setting  the  prece- 
dent of  making  either  House  of  Congress  a  part}'  to  an  act  which  it 
was  his  exclusive  right  and  duty  to  perform, 

"Mr,  Crawford  said  he  did  not  think  there  was  anything  in  the 
objection  to  sending  a  minister  on  the  score  of  national  dignit3%  and 
that  there  was  a  difference  between  the  recognition  of  a  change  of 
government  in  a  nation  already  acknowledged  as  sovereign,  and  the 


§  75.]  RECOGNITION,   BY  WHOM    DETERMINABLE.  245 

recognition  of  a  new  nation  itself.  He  did  not.  however,  denv.  l)iit 
admitted,  that  the  recognition  was  strictly  within  the  powers  of  the 
P^xecutive  alone,  and  1  did  not  press  the  discussion  furthci-."" 

In  his  message  of  March  8,  182:^,  presenting  the  ((uestion  of  recog- 
nizing the  ''Spanish  provinces  in  this  hemisphere"  to  Congress, 
President  ^Nloni'oe  stated  that  he  did  so  in  order  that  therc^  might  be 
"'such  cooperation  between  the  two  departments  of  the  (TONernmcnt 
as  their  respective  rights  and  duties  may  require."  He  then  pro- 
ceeded to  express  the  opinion  that  "'the  pi'ovinces  which  have  declared 
their  independence  and  are  in  the  possession  of  it  ought  to  be  recog- 
nized;" and  he  concluded  by  saying:  "Should  Congress  concur  in  the 
view  herein  presented,  they  will  doul)tlesssee  the  propriety  of  making 
the  necessary  appropriations  for  carrying  it  into  etfect."  '' 

An  appropriation  oj:"  ^lOO.OOO  Avas  made  "for  such  missions  to  the 
independent  nations  of  the  American  continent,  as  the  President  of 
the  Tnited  States  may  deem  proper."' 

In  his  special  message  of  December  21.  183«).  President  .lackson 
ol)served  that  a  resolution,  which  had  been  introduced 
in  the  House  of  Representatives,  "•distinctly  intimated 
that  the  expediency  of  recognizing  the  independence  of  Texas  should 
be  left  to  the  decision  of  Congress.  In  this  view,  on  the  ground  of 
expedienc}',  I  am,''  said  President  Jackson.  *"  disposed  to  concur,  and 
do  not,  therefore,  consider  it  necessary  to  express  any  opinion  as  to 
the  strict  constitutional  right  of  the  Executive,  either  apart  from  or  in 
conjunction  with  the  Senate,  over  th(»  subject."  Congress,  however, 
merelv  incorporated  in  the  civil  and  diplomatic  appropriations  act  of 
March  3.  1837,  a  provision  "for  the  salary  and  outfit  of  a  diplomatic 
agent  to  be  sent  to  the  Republic  of  Texas,  whenever  the  President  of 
the  United  States  may  receive  satisfactory  evidence  that  Texas  is  an 
independent  power,  and  shall  deem  it  expedient  to  appoint  such  min- 
ister.'"'' 

"What    authority  is    to    recognize     *     *     *     a    new  govcrnmcMit 

claiming  to  exist  over  an  island,  which  constituted  an 

Statement    of    Mr.  .     .  ,  .       .«    -i         i        •    •  i?  •  -t-i 

„    ^  intet>"ral  part  of  trie  dommions  or   a  sovei-eign.   with 

whom  our  relations  are  of  a  fi-iendly  ciiaracterf      1  his 

act  of  high  sovereign  power,  certainly  can  not  without  instructions,  be 

]x>rformed  by  a  consul,  whose  functions  are  purely  commercial:  and  he 

ought  never  under  any  conceival)le  circumstances,  to  assume  such  a 

high  responsibility.     In  the  Cnited  States  such  a  recognition  is  usually 

effected,  either  by  a  nomination  to,  and  continuation  by  the  Senate  of 


a^Ienioirs  of  John  Quincy  Adams,  IV.  20r)-20t). 
6 Richardson,  II.  IKi-llS. 

C'An  act  making  an  appropriation  to  defray  the  exjienses  of  missions  to  the  iiidt^ 
pendent  nations  on  the  American  continent."      u"!  Stat.  tiTS. ) 
(lb  Stat.  170. 


24(i  states:  recognition  and  continuity.  [§  T5. 

a  Diplomatic  or  Consular  agent  to  tho  now  (irovernment,  or  by  an  act 
of  Congress.  The  latter  course  was  adopted,  in  the  recognition  of  the 
independence  of  the  Spanish-American  Republics," 

Mr.  Buchanan,  Sec.  of  State,  to  ^U:  Marstoii,  consul  at  Palermo,  Oct.  31,  1848, 
10  MS.  l)isi)atclies  to  Consuls,  489. 

The  circumstances  of  this  ca.<e  arc  given,  supra,  112-118.  Mr.  Buchanan,  after 
the  passage  al)ove  quoted,  expressly  refers  to  the  act  of  May  4,  1822,  the 
terms  of  which  have  just  l)een  triven.      (Supra,  8.^,  248.) 

"Should  the  new  (Tovernment  prove  to  be,  in  3'our  opinion,  lirm 
and  sta))le.  the  President  will  cheerfully  recommend 

Mr. Mann's  instrnc-   ,      /,  .    .1     •  i.  •  iu  -i.-  j; 

to  Congress,  at  their  next  session,  the  recognition  or 
tions.  '^  .... 

Hungary,  and  you  might  intimate,  if  you  should  see 

tit,  that  the  President  wotdd  in  that  event  be  gratified  to  receive  a  dip- 
lomatic agent  from  Hungary  in  the  Fnited  States  by  or  before  the  next 
meeting  of  Congress,  and  that  he  entertains  no  doubt  whatever  that  in 
case  her  new  (lovernment  should  prove  to  be  tirm  and  stable,  her  inde- 
pendence would  be  speedily  recognized  ))v  that  enlightened  body."" 

^Ir.  Clayton,  Sec.  of  State,  to  Mr.  Mann,  special  and  confidential  aigent  to  Hun- 
gary, .Tune  18,  1849,  S.  Ex.  Doc.  48,  81  Cong.  1  Sess. 

>Vharton,  Int.  Law  Dig.,  I.  o."i8,  referring  to  this  passage,  says:  "As  to  this  it 
is  to  he  remarked  that  while  Mr.  Wehster,  who  shortly  afterwards,  on  the 
death  of  President  Taylor,  hecame  Secretary  of  State,  sustained  the  send- 
ing of  Mr.  ^fanii  as  an  agent  of  inquiry,  he  was  silent  as  to  this  paragraph, 
and  suggests,  at  the  utmost,  only  a  ])rol)al)le  Congressional  recognition  in 
ca.>^e  the  new  (lovernment  should  prove  to  ])e  firm  and  stahle." 

It  may  also  he  observed  that  if  ^Fr.  ]\hinn  had  found  a  Hungarian  (iovernment 
which  he  considered  suHiciently  establi.^^hed,  and  had  presented  himself  to 
it  oliicially,  as  he  was  authorized  to  do;  and  if,  in  a<ldition  to  that,  the 
President  ha<l,  V)efore  the  iiK-etiugof  Congre.«s,  received  a  diplomatic  agent 
from  Hungary,  it  does  not  ai)pear  what  would  have  been  wanting,  from 
the  international  point  ()f  view,  to  the  recognition  by  the  United  States  of 
Hungarian  independence. 

It  was  maintained  ])y  Mr.  Seward  that  the  recognition  of  revolution- 
ary or  reactionary  go^•el•nments  belongs  exclusively  to 

-         ,  the  ExccutiN'e.  and  can   not  be  determined  internation- 

Seward. 

ally  by  Congressional  action. 

Mr.  Seward.  Sec  of  State,  to  Mr.  Davton.  Ai)ril  7.  18(>4,  MS.  Inst.  France, 
XVII.  42. 

That  the  ])ower  of  recognition  belongs  exclusively  to  the  Executive  is  main- 
tained in  :  "Memorandum  on  the  nu-thod  of  'recognition'  of  foreign  gov- 
ernment.s  ajid  foreign  states  by  the  ( rovemment  of  the  United  States, 
17S9-1897,"  S.  Doc.  40,  54  Cong.  2  Sess. ;  ".Memorandum  upon  the  power 
to  recognize  the  independence  of  a  new  foreign  state,"  S.  Doc.  rt(\,  54  Cong. 
2  Sess. 

••  It  is  for  governments  to  decide  whether  they  will  consider  St. 

Domingo  as    an    independent   nation,  and  until  such 
Decisions  of  the      I'-ini  1  i-<  in        i-  -ii 

decision  snail  be  made,  or  r  ranee  shall  relinquish  her 
Courts.  ...  . 

claim,  courts  of  justice  must  consider  the  ancient  state 
of  things  as  remaining  unaltered,  and  the  sovereign  power  of  France 
over  that  colony  as  still  subsisting."' 


§  T5.]  RECOGNITION,   BY  WHOM    DETERMINABLE.  247 

Marshall,  C.  J.,  Rose  v.  Himely  (1808),  4  Cranch,  239,  272. 

The  same  principle  is  laid  down  in  Golston  r.  Iloyt,  8  Wheat.  324;  The  Nueva 
Anna,  (5  Wheat.  193;  Kennett  r.  Chambers,  14  Howard,  38;  U.  S.  v.  Pico, 
23  Howard,  326;  Jones  r.  United  States  (1890),  137  U.  S.  202,  212-213. 
In  judicial  proceedings  involving  the  question  of  the  existence  of  a  par- 
ticular govermnent,  the  action  of  the  Department  of  State  "has  heen 
confined  to  furnishing,  upon  application  of  any  court,  a  statement  of  the 
actual  status  of  diplomatic  relations  between  the  United  States  and  the 
government  in  question."  (Mr.  Foster,  Sec.  of  State,  to  Senor  Bolet 
Peraza,  Venez.  min.,  tel.,  Sept.  21,  1892,  For.  Rel.  1892,  044.) 

That  courts  may  take  notice  of  existing  sovereignties  from  the  fact  of  their  con- 
tinuous existence  in  history,  see  Consul  of  Spain  v.  The  Conception,  2 
Wheel.  Cr.  Cas.  597;  1  Brunner,  Col.  Cas.  597;  S.  P.,  The  Maria  Josepha, 
2  Wheel.  Cr.  Cas.  600;  1  Brunner,  Col.  Cas.  500.  Compare  Williams  v. 
Suffolk  Ins.  Co.,  13  Pet.  415,  athrming  3  Sumner,  270. 

Where  property,  captured  in  tlie  autumn  of  1813,  was  claimed  by  a 
native  of  Buenos  Aires,  who  carried  on  trade  there  with  his  father 
and  sister  as  partners,  and  who  had  been  "admitted  a  freeman  of  the 
new  Government,"'  which  the  United  States  had  not  i-ecognized,  he 
was  accorded  tiie  rights  of  a  Spanish  subject,  under  the  treaty  l)etween 
the  United  States  and  Spain  of  1795. 

The  Nereide  (1815),  9  Cranch,  388. 

The  course  of  the  United  States  with  reference  to  a  revolted  portion 
of  a  foreign  nation  is  regulated  and  directed  by  the  legislative  and 
executive  departments  of  the  Government,  and  not  by  the  judicial 
department.  If  the  Government  remains  neutral,  and  recognizes  the 
existence  of  a  civil  war,  the  courts  can  not  consider  as  criminal  those 
acts  of  hostility  which  war  authorizes,  and  which  the  new  government 
may  direct  against  its  enemy.  The  persons  or  vessels  employed  in 
the  s(n'vice  of  a  territory  whose  belligerency  has  been  recognized  by 
this  Government  must  be  permitted  to  prove  the  fact  of  their  ])eing  so 
employed  by  the  same  testimony  as  would  be  sufficient  to  prove  that 
such  person  or  vessel  was  employed  in  the  service  of  an  acknowledged 
state.  The  seal  of  such  unacknowledged  government  can  not  be  per- 
mitted to  prove  itself,  but  may  ])e  proved  by  such  testimony  as  the 
nature  of  the  case  admits;  and  the  fact  that  a  person  or  vessel  is  in  the 
service  of  such  government  may  ))e  proved  without  proving  the  seal. 

U.  S.  r.  Palmer,  3  Wheat.  610.     See  the  Estrella,  4  Wheat.  298. 

The  Executive  having  recognized  the  existence  of  a  state  of  war 
between  Spain  and  her  South  American  colonies,  th(>  courts  of  the 
union  are  l)ound  to  consider  as  lawful  those  acts  which  war  authorizes, 
and  which  the  new  Governments  in  South  America  may  direct  against 
their  enenn-.  Captures  made  under  theii'  conuiiissions  are  to  be  treated 
by  the  courts  as  other  captures,  and  their  legality  can  not  l>e  determined 
unless  they  were  made  in  violation  t)f  the  ncHitral  rights  of  the  United 
States. 

Divina  Pastora,  4  Wheat.  52;  Josefa  Segunda,  5  Wheat.  338. 


248  states:  recognition  and  continuity.      [§§  76-77. 

The  courts  follow  the  Executive  in  the  recognition  of  belligerency, 
even  in  the  cases  of  domestic  insurrection. 

The  Prize  Cases,  2  lilack,  785;  V.  S.  r.  Yorha,  1  Wall.  412;  U.  S.  v.  Hutchings, 
2  Wheel.  C.  C.  543;  The  Hornet,  2.  Al)l)ott  (U.  8.),  35;  U.  S.  r.  Baker,  5 
Hlatch.  6;  1  Brunner  C.  C.  4Stl. 

See  also  Dana's  Wheaton,  note,  !J  23,  jtp.  34,  3(). 

''It  belongs  to  the  })oliticiil  department  to  determine  when  bellig- 
erency shall  l)«>  recognized,  and  its  action  must  he  accepted  according 
to  the  t(M"nis  and  intention  expressed." 

The  Three  Friends  1 1S!I7),  IK)  IT.  8.  1,  63.  In  this  case  the  court  followed  the 
action  of  the  Executive  in  recofrnizing  a  state  of  revolt  or  insurgency,  as 
distinguished  from  belligerency,  such  a])j)earing  to  be  the  Executive 
intention.     See,  particularly,  I'nderhill  r.  Hernandez  ( 1897),  168  U.  S.  250. 

Vll.     COXTIXl'JTY  OF  ,STATES. 
1.  Tkrkitoriai.  Changes. 

§  76. 

Mere  territoral  changes,  whether  by  increase  or  by  diminution,  do  not, 
so  long  as  the  identity  of  the  state  is  preserv^ed,  affect  the  continuity 
of  its  existence  or  the  o])ligations  of  its  treaties.  Prussia,  after  the 
peace  of  Tilsit,  in  18UT,  lost  almost  a  third  of  its  territory.  The  King- 
dom of  Saxony,  by  the  treaty  of  Vienna,  was  reduced  to  a  half  of  its 
previous  dimensions.  France,  in  1815  and  1871,  and  Turkey,  in  1829 
and  1878,  both  were  deprived  of  territory.  Austria  lost,  in  1859,  its 
richest  province,  Lombardy,  and.  in  1866,  Venetia.  In  none  of  these 
cases  was  the  continuity  or  the  identity  of  the  state  destroyed,  nor 
was  the  general  force  of  its  international  obligations  held  to  be 
iuipaired. 

Martens,  Traite  de  Droit  Int.,  I.  §  08. 
Rivier,  Principes  (hi  Droit  des  (iens,  I.  (53-65. 

2.    ClIANOKS    IN    PoiMLATION. 

S  77. 

What  has  been  said  as  to  territorial  changes  applies  also  to  changes 
in  popidation.  Population  is  inces.santly  renewed;  and  its  numbers 
and  racial  character  may  l)e  strongly  modified,  even  without  any  gain 
or  loss  of  territory.  When  the  Great  Elector  received  the  Protestant 
French,  the  population  of  the  countries  which  went  to  make  up  the 
Prussian  monarchy  acquired  an  element  speaking  a  different  language, 
and  of  great  intellectual,  moral,  and  numerical  importance.  From  the 
point  of  view  of  international  law,  the  states  concerned  suffered  no 


§  78.]  .  CONTINUITY    OF    STATES.  249 

change.  The  case  was  the  same  with  Geneva  in  the  sixteenth  century, 
and,  in  a  different  measure,  at  the  end  of  the  seventeenth  and  eighteenth 
centuries. 

Rivier,  Principes  du  Droit  des  Gens,  I.  63-<)5. 
S.   Political  CiiANfJKs. 

S  7S. 

Changes  in  the  government  or  the  internal  polity  of  a  stiite  do  not 
as  a  rule  affect  its  position  in  international  law.  A  monarchy  may  be 
tiansformed  into  a  republic  or  a  republic  into  a  monarchy;  absolute 
principles  ma}'  be  sul)stituted  for  constitutional,  or  the  reverse;  but, 
though  the  government  changes,  the  nation  remains,  with  rights  and 
obligations  unimpaired.  There  may  be  produced,  however,  a  ciiange 
in  rank,  as  ])y  the  conversion  of  a  kingdom  into  a  principality,  or  the 
reverse. 

The  principle  of  the  contiiiuitv  of  states  has  important  results. 
The  state  is  bound  by  engagements  entered  into  by  governments  that 
have  ceased  to  exist;  the  restored  government  is  generally  lialde  for 
the  acts  of  the  usurper.  The  governments  of  Louis  XVIII.  and  Louis 
Philippe  so  far  as  practicable  indemniffed  the  citizens  of  foreign  states 
for  losses  caused  by  the  government  of  Napoleon;  and  the  King  of  the 
Two  Sicilies  made  compensation  to  citizens  of  the  United  States  for 
the  wrongful  acts  of  Murat. 

Rivier,  Principen  du  Droit  des  Gens,  I.  62. 

The  full  history  of  the  Freiieh  indemnities  to  citizens  of  the  I'nited  States, 

under  the  eonventions  of  1S03  and  lS:n,  is  given  in  Moore,  International 

Arl)itrations,  V.  4.399,  4447.      The  indemnities  paid  by  France  to  other 

l)o\vers  are  noticed  in  the  same  volume,  4862. 
The  history  of  the  indeniiiity  made  l)y  the  King  of  the  Two  Sicilies  may  also 

l)e  found  there,  ('hai)tcr  (i,  4575,  and,  particularly,  as  to  the  principle  of 

liability,  4576-45S1. 
The  decisions  of  the  commission  under  the  Florida  treaty  upon  (piestioiis  as  to 

the  liability  of  Spain  for  the  acts  of  the  French  in  that  country  are  given 

in  the  same  volume,  4512  et  se(|. 

"It  may  be  true,  as  alleged  by  Baron  de  Damas,  that  the  King  of 
France,  in  reasoending  the  throne,  'could  not  take,  nor  has  taken,  the 
engagement  to  satisfy  all  the  charges  imposed  on  iiim  as  indemnity 
for  the  acts  of  violence  and  for  the  depredations  committed  l)y  the 
usurping  Government'  [of  XapoleonJ;  and  yet  the  obligations  of 
France  to  redress  those  acts  and  depredations  may  be  i)erfect.  It  is 
not  necessaiy  to  discuss  the  (juestion  of  usurpation  wiiich  is  put 
forward.  It  is  sufficient  for  us  that  those  acts  and  dei)re(lati<)ns  pro- 
ceeded from  the  actual  Govermnent  of  France:  and  that  the  responsi- 
bility of  France  to  make  reparations  for  wrongs  connnitted  under  the 
authority  of  any  form  of  govermnent  which  she  may  ha\('  adopted,  or 
to  which  she  mav   have   submitted,  from   time   to   time,  can   not   be 


250  states:  recognition  and  continuity.  [§  78. 

contested.  The  King  of  France,  in  reascending  the  throne  of  his 
ancestors,  assumed  the  government,  with  all  the  obligations,  rights, 
and  duties  which  appertain  to  the  Fiench  nation.  He  can  justly  claim 
absolution  from  none  of  those  obligations  or  duties.  And  our  com- 
plaint is  pi'ecisely.  that  he  has  not  tid<en  upon  iiimself  the  engagement 
to  make  that  indemnity  to  wiiicli  American  citizens  ai'e  entitled  in 
consequence  of  the  wrongful  acts  conunitted  under  previous  French 
Governments."' 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Brown,  minister  to  France,  May  28,  1827,  H. 
Ex.  Doc.  147,  22  Cong.  2  se.s.«.  1.^-16. 

The  same  principle  is  restated  in  Mr.  Van  Bnren,  Sec.  of  State,  to  Mr.  Rive.s, 
minister  to  France,  .Inly  20,  lS2i),  id.  18,  22-24;  and  by  Mr.  Rives,  id.  180. 

"When  the  allied  powers  of  Eun)pe  overthrew  the  dynasty  of  Napoleon  and 
restored  tt)  the  conntries  which  he  had  subdued  their  legitimate  sovereigns, 
there  were  but  two  or  three  inferior  states,  and  those  in  Germany,  which 
atteni])ted  to  <leprive  i>r(>prietors  of  domains  acquired  by  them  under  the 
authf)rity  of  theii-  difitrtn  rulers.  Austria,  Prussia,  Russia,  the  Bourbon 
sovereigns  in  France  and  Italy,  Sardinia,  and  the  Pope,  resi)ected  the  law 
of  rea.<on,  of  justice,  and  of  nations,  and  left  undisturbed  titles  so  acquired." 
(Phillimore,  Int.  I^iw,  2nd  ed.,  III.  851.) 

The  same  i)rinciple  was  laid  down  in  the  ca.«e  of  the  Prince  of  Hesse  Cassel  in 
respect  of  debts,  it  being  liel<l  that  discharges  of  debts  due  to  the  prince 
given  1)y  Napoleon  as  de  facto  ruler  of  the  country  were  valid.  (Phillimore, 
Int.  Law,  2nd  ed.,  III.  841-849.) 

"The  origin  and  organization  of  government  are  questions  generally 
of  internal  discussion  and  decision.  Foreign  powers  deal  with  the 
existing  de  facto  govermnent,  when  sufiiciently  established  to  give 
reasonable  assurance  of  its  permanence,  and  of  the  acquiescence  of 
those  who  constitute  tht»  state  in  its  ability  to  maintain  itself,  and  to 
discharge  its  internal  duties  and  its  external  obligations. 

"If  the  government  which  a  people  have  placed  in  power,  or  have 
consented  to  its  exercise  of  jjower,  mis])ehave  and  violate  or  transcend 
their  limited  functions,  it  is  the  misfortime  of  those  who  have  placed 
it  in  power  or  consiMited  to  its  elevation  and  to  its  discharge  of  public 
trusts.  Its  misconduct  should  not  be  visited  upon  individuals  who 
honesth"  enter  into  engagem<Mits  with  its  official  representatives.  To 
admit  this  would  destroy  all  security  in  such  contracts  or  engagements 
and  would  necessarily  destroy  the  credit  of  the  state,  while  working 
grievous  injustice  to  those  who  mav  ))e  furnishing  the  verv  means  for 
the  conduct  of  the  affairs  of  the  government." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Ba.«sett,  minister  to  Ilayti,  Feb.  21,  1877,  MS. 
Inst.  Ilayti,  II.,  91,  referringto  a  legislative  act  of  the  existing  Government 
of  Ilayti  declaring  the  acts  and  engagements  of  the  preceding  administra- 
tion invalid.  Mr.  Ba.s.«ett  was  instructed  to  express  to  the  Haytian  Gov- 
ernment, in  advance  of  the  i)Ossil)iiity  of  a  jtractical  question  ari.«iing,  the 
hope  that  it  would  not  insist  upon  the  application  of  a  principle  which  the 
United  States  could  not  but  regard  as  ])eing  "in  conflict  with  accepted  law" 
and  as  "tending  to  injure  the  credit  ami  the  high  sense  of  obligation"  of 
Hayti. 


i  "iS.]  CONTINUITY    OF    STATES.  251 

"1  have  received  your  No.  138,  of  the  li^th  of  Aug-ust  la.st,  in  which 
you  report  certain  proceedings  of  the  Peruvian  Con^^re.s.s  which  .seemed 
to  castadou))t  upon  the  obligation  of  tlie  present  (iovcn-nnKMit  of  Peru 
to  keep  engagements  entered  into  l)y  the  Pierola  and  Iglesias  (Govern- 
ments. Your  apprehension  that  the  present  ( rovernment  may  contem- 
plate a  general  denial  of  su<;h  o])ligations  seems  to  have  been  aroused 
mainly  by  two  l)ills  introduced  in  the  House  of  Deputies,  one  of  which 
proposed  to  annul  all  appointments  made  in  the  judiciary  departments 
under  the  Governments  of  Pierola  and  Iglesias,  and  th(»  other  to  annul 
all  interior  or  domestic  acts  of  those  Governments.  The  former  bill, 
you  state,  has  been  passed  by  the  House  without  discussion.  The 
latter  measure  has  not  been  acted  on;  but.  inasnuich  as  if  it  should 
receive  the  approval  of  the  Congress  it  might  seriously  affect  exten- 
sive interests  of  citizens  of  the  Tnited  States  which  have  grown  up 
under  contracts  with  the  Piei'ola  and  Iglesias  Governments,  especially 
in  coifnection  with  the  construction  and  operation  of  railways,  you  ask 
to  be  instructed  as  to  the  course  you  should  pursue  in  the  contingency 
you  suggest. 

"Upon  the  general  question  of  the  binding  effect  upon  Peru  of  con- 
tracts made  by  the  Pierola  and  Iglesias  Governments  in  accordance  with 
the  constitution  and  laws  of  that  country,  the  opinion  of  this  Depart- 
ment is  that  the  performance  of  such  engagements  is  obligatory  upon 
the  present  Peruvian  Government;  and  that  the  attempt  on  the  part 
of  that  Govei'nment  to  avoid  such  contracts,  thus  denying  the  capacity 
of  the  Pierola  and  Iglesias  Governments  to  contract,  in  violation  or  dis- 
regard of  the  vested  rights  of  citizens  of  the  United  States,  would 
afford  just  ground  foi-  complaint.  For  the  greater  part  of  six  years, 
from  18TH  until  lss.5,  either  the  Pierola  or  the  Iglesias  Goveriunent 
was  recognized  by  foreign  powers  as  the  Government  of  Peru.  The 
United  States,  in  connnon  with  other  nations  maintaining  diplomatic 
and  conmiercial  relations  with  that  country,  took  no  part  in  the  civil 
conflict  which  raged  from  time  to  time  during  that  pericjd.  but  acted 
upon  the  principle  of  recognizing  as  the  lawful  Government  of  Peru 
that  political  organization  which  was  able  to  maintain  the  diplomatic 
and  commercial  relations  of  the  country  with  foreign  nations.  The 
acts  of  such  a  goveriunent  are  universally  admitted  as  bindiiig  upon 
the  country  which  it  repi'esents.  This  prineiple  holds  even  where  a 
change  in  the  form  of  a  goveriunent  occui's;  and  it  appli(\s  still  more 
strongly  where  the  change  is  merely  in  the  personnel  of  the  govern- 
ment. Contracts  made  by  a  government  are  to  be  regarded  as  the 
obligations  of  the  nation  it  represents,  and  not  as  the  personal  engage- 
ments of  the  rulei's.  Hence,  although  tho  government  may  change  the 
the  people  remain  bound. 

"It  is  hardly  to  ])e  supposed  that  the  (iovernment  of  Peru  would 
entertain  a  disposition  to  declare  void  all  contracts  made  by  the  Pierola 


252  states:  recognition  and  continuity.  [§  79. 

and  Iglosias  Governments;  and  what  is  herein  said  on  that  subject  is 
intended  to  inform  you  of  the  views  of  this  Government  upon  the  ques- 
tions of  international  law  which  are  involved,  and  not  to  direct  >'ou  to 
tjike  any  anticipator}-  action. 

'"  Any  case  arising  in  which  American  interests  are  found  to  be 
aliected  will  require  to  l)e  examined  on  its  merits,  to  determine  how 
far  the  oeneral  principle  applies.  But,  as  to  the  (general  principle,  the 
present  (lovernment  of  Peru  should  know  our  position." 

Mr.  IJayanl,  Sec.  of  State,  to  Mr.  Buck,  iiiiiii.^ter  to  Pern,  Xo.  97,  Sept.  1'3, 
188(),  For.  Rel.  1S87,  921. 

"I  have  received  your  No.  212,  of  February  28,  coiitaiiiinfj  forres]K)mlence  in 
regard  to  tlio  action  of  tlie  Peruvian  Congress  'declaring  null  all  acts  of 
the  Pierola  and  Iglesias  Governments.' 

"The  views  of  the  Government  of  the  United  States  having  Ix'en  announced 
as  to  the  general  principles  involved  in  tlje  assumi)tions  ot  the  Peruvian 
legislation,  and  exception  in  i)rinciple  duly  taken  thereto,  the  matter  may 
now  rest,  unless  some  si>ecific  case  should  arise  affecting  American  interests 
and  calling  for  renewed  representations."  (Same  to  sam^,  No.  130,  April 
29,  1887,  id.  934.) 

"Government  is  constituted  in  Republic  of  the  United  States  of 
Brazil.  Monarchy  deposed;  imperial  f amih'  left  the  country ;  provinces 
adhere:  tranquillity  and  general  satisfaction:  executive  power  intrusted 
to  Provisional  (TOA'ernment,  wlio.se  chief  is  Marshal  Deodoro  da  Fon.seca, 
and  myself  the  mini.ster  of  finance;  Republic  respects  stricth'  all  engage- 
ments and  contracts  entered  upon  by  the  state." 

Telegram  of  Mr.  Ruy  Barbosa,  minister  of  finance  of  Provisional  (rovernment 
of  Brazil,  conummicated  to  Mr.  Blaine,  Sec.  of  State,  Nov.  23,  1889,  For. 
Rel.  1889,  70. 

4.     SfSI'ENSION  or    IxnKl'KN'nKXCE. 

>5  79. 

Under  the  convention  of  Jidy  4,  1831,  France  paid  the  United 
States  a  siun  of  mone\'  in  settlement  of  chiims  of  citizens  of  the  latter 
growing  out  of  the  acts  of  Xapol(M>n.  To  the  commissioners  appointed 
to  carry  this  convention  into  efi'ect,  claims  were  submitted  for  the 
seizure  and  the  se([uestration  or  conliscation  of  American  vessels  in 
Dutch  ports  in  l.soi*  and  Islo.  When  the  United  States  pre.ssed  these 
claims  against  Holland  in  IS  15,  the  Dutch  Government  denied  its 
responsibility  on  the  ground  that  when  the  seizures  occurred  the  Neth- 
erlands were  under  the  actual  government  of  France.  The  discussion 
continued  from  time  to  time  for  five  years.  May  26,  18:^(),  Mr.  John 
Quincy  Adams,  as  Secretary  of  State,  instructed  the  minister  of  the 
United  States  at  The  Hague  to  forbear  for  the  time  to  press  the  sub- 
ject further.  This  step  was  taken  at  the  rcHjuest  of  the  Dutch  Gov- 
ernment, made  through  its  minister  at  Washington,  that  the  claims  be 
not  further  pre.ssed.     As  demands  against  the  Netherlands  the  claims 


§  '^^•]  CONTINUITY    OF    STATES.  253 

were  thus  practically"  abandoned.  Tlie  coniuii.ssioners  under  the;  con- 
vention with  France  decided  that  they  constituted  valid  demands  upon 
the  French  nation.  The  reasoning  of  the  connnissioners.  as  stated  hy 
one  of  their  number,  was  as  follows: 

"  Holland,  after  some  ten  years  of  political  changes,  during  which 
though  nominally-  independent  she  was  tril)utary  to  all  the  pnjjects  of 
France,  had  received,  in  the  month  of  June,  LSO<),  a  king  of  the  Napo- 
leon family.  But  it  was  manifest,  that  in  placing  Louis  upon  the 
throne,  his  brother  had  not  renounced  his  control  over  the  atfaii's  of 
that  countr3^  The  form  of  distinct  sovereignties  was  presented  to 
the  public  eye;  but  the  energies  of  the  Dutch  people  were  directed 
more  than  ever  to  the  advancement  of  the  imperial  policy.  At  last, 
in  the  concluding  month  of  1809,  a  now  crisis  approached.  At  a 
moment  when  the  finances  of  Holland  were  in  a  state  of  extreme 
embarrassment,  she  was  required  to  destroy  her  connnerce  with  for- 
eign nations,  which  formed  the  principal  source  of  her  rineiuies. 
Louis  ventured  to  remonstrate,  and  delayed  compliance  with  the  man- 
date. He  was  reminded  in  reply,  that  the  country  of  which  he  was 
sovereign  was  a  French  conquest,  and  that  '  his  highest  and  impre- 
scriptible duties  were  to  the  imperial  crown;'  and  it  was  announced  to 
him,  in  terms  which  could  not  he  mistaken,  that  the  project  of  uniting 
Holland  to  the  empire  was  alread\'  matured,  and  that  its  consununa- 
tion  could  only  be  postponed  by  his  unqualified  obedience.  Among 
the  most  decided,  though  not  the  first  tests  of  his  submission,  as  he 
has  since  declared  to  the  world,  "  the  pretended  treaty  of  the  liith  of 
March,  1810,  which  was  in  fact  a  capitulation,  was  presented  to  him  to 
be  ratified.'  *■  It  was  imposed,'  he  adds,  *  by  the  emperor;'  and  a  pris- 
oner as  Louis  was  at  the  time  at  Paris,  he  had  no  choice  but  to  yield. 
The  French  armies  had  forciblv  possessed  themselves  beforehand  of 
several  of  the  Dutch  fortresses;  French  officers  of  the  customs  occu- 
pied all  the  ports  and  outlets  of  the  kingdom;  and  Napoleon,  con- 
founding apparently  his  purposes  with  their  execution,  had  already 
directed  his  decrees  to  the  authorities  of  Hc.iand  as  if  it  was  one  of 
the  departments  of  France.  The  assent  of  the  king  however  did  not 
avail  to  prolong  his  reign.  The  troops  of  his  lu-other  continued  to 
advance,  they  menaced  Amsterdam,  the  popular  feeling  was  infiamed, 
and  in  the  vain  hope  of  averting  a  new  revolution.  Louis  al)dicated 
on  the  1st  of  July  in  favour  of  his  son.  It  was  uiuiecessarv;  the 
emperor's  arrangements  were  already  made;  a  decree  of  thirteen 
articles  was  issued  on  the  9th  from  the  palace  of  Kambouillet.  the 
first  of  which  declared  that  Holland  was  united  to  the  empire. 

"The  tenth  article  of  the  treaty  of  KUh  March.  ISlo,  was  as  fol- 
lows: 'AH  merchandise  which  has  arrived  in  American  vessels  in  the 
ports  of  Holland  since  the  1st  of  January.  1809,  shall  ))e  placed  under 
sequestration,  and  shall  belong  to  France,  to  be  disposed  of  according 


254  states:  recognition  and  continuity.  [§  79. 

to  circiiiiistances  and  to  the  political  relatioii.s  with  the  United  States.' 
It  was  executed  in  the  spirit  which  suggested  it,  rather  than  according 
to  its  terms;  (nerv  American  cargo,  without  reference  to  the  date  of 
its  importation,  was  secjuestered  at  once.  Some  were  afterwards 
released  under  the  decree  of  i>th  July.  1810,  or  by  special  favour;  but 
the  greater  number,  after  more  or  less  delay,  were  sold  by  the  impe- 
rial order,  and  their  proceeds  passed  into  the  calsi^e  (TuniortimeDient  at 
Paris. 

"It  was  for  the  value  of  these  cargoes  that  reclamations  were  made 
before  the  conunissi(^iu>rs.  The  l)rief  account  which  has  been  given  of 
the  political  condition  of  Holland  from  the  year  1809  till  it  was  form- 
ally merged  in  the  French  empire  •sufficiently  explains  the  reason  for 
allowing  them.  Holland  was  already  a  dependent  kingdom,  and  Louis 
a  merely  nominal  sovereign.  The  treat}'  was  a  form;  in  su))stance  it 
was  an  imperial  decree."' 

Mr.  Kane,  <»ne  of  tho  coniniis.'^ioners,  quoted  in  l\I>)ore,  International  Arbitra- 
tions, V.  447o. 

An  illustration  of  the  difference,  aw  affecting  tlie  continuity  of  the  state, 
l)etween  the  actual  suppression  of  independence,  a.s  in  the  cai?e  of  the 
Netherlands,  and  the  mere  exercise  of  influence,  however  powerful  it  may 
be,  by  one  state  over  another,  is  found  not  only  in  the  case  of  tlie  Two 
Sicilies  under  ^lurat,  to  which  reference  lias  been  made  above,  })ut  also  in 
the  case  of  Denmark.  From  1807  to  1811,  many  American  vessels  were 
seized,  and  some  of  them  were  condemned  by  the  Danes  under  decrees 
which  were  practically  dictated  ])y  Xapoleon.  The  claims  growing  out  of 
these  spoliations  were  pressed  and  finally  settled  as  demands  against  Den- 
mark. (Moore,  Int.  iVrliitrations,  V.  4549.)  The  commissioners  inider 
the  convention  between  the  United  States  and  France  of  July  4,  1881,  held 
that  they  could  not  l)e  i-harged  against  the  latter  country,  for,  although 
the  conduct  of  the  King  of  Denmark  may  liave  l)een  influenced  by  "his 
anxiety  to  conciliate  the  favor  of  the  French  emi)eror,"  the  "act  was  liis 
own:  the  Kingdom  of  Denmark  was  then,  as  now,  independent."  (Moore, 
Int.  Arbitrations,  V.  4475.) 

See,  also,  as  to  the  suspension  of  tlie  independence  of  the  Dutch,  Davis'  Treaty 
Notes,  Treaties  and  Conventions  l>etween  the  United  States  and  other 
Powers,  1776-1887,  1235. 


CHAPTER  IV. 

SOVEREIGNTY;  ITS  ACQUISITION  AND  LOSS. 

I.  The  acquisition  aii<l  Iohis  of  territory. 

1.  Occupation. 

(1)  Discovery.     §  80. 

(2)  Settlement.     §  81. 

Extent  of  possession. 
Continuity. 
Contiguity. 
Berlin  dei-laration. 

2.  Accretion.     §  82. 

3.  Cession. 

(1)  C<nisent  of  the  population.     §88. 

(2)  Protection  of  territory  pending  annexation.     §  84. 

(3)  Que.stion  as  to  annexation  by  a  neutral  during  war.     §  8-5. 

(4)  Projjerty  that  passes  by  cession.     §  86. 

Case  of  Louisiana. 

The  Floridas. 

Ala.«ka. 

Spanish  islands,  1898. 

4.  Conquest.     §  87. 

5.  Prescripti(jn.     §  88. 

Opinions  of  publicists. 
Judicial  decisions. 
Venezuelan  l)oun( lary. 

6.  Abandonment.     §  89. 
II.  Revolution.     §  90. 

III.   Internal  development.     §91. 
IV.  Effects  of  change  of  sovereignty. 

1 .  On  boundaries.     §  92. 

2.  On  public  law.     §  93. 

3.  On  revenue  laws.     §  94. 

The  insular  ca.<es. 
De  Lima  r.  Bidwell. 
Downes  '•.  l^idwell. 
Dooley  '■.  I'nited  States. 
Huns  r.  Steamship  Co. 
Goetze  r.  United  States. 
Fourteen  Diamond  Rings 
Second  Dooley  ca«e. 
Division  of  territory. 

4.  On  private  law.     §  9iS. 

5.  On  public  obligations.     §  9*^. 

255 


256  sovekeignty:  its  acquisition  and  loss. 

IV.    I'-ffec't.s  (if  iliange  of  sovereignty — (_\)iitinued. 
(i.   On  piihlic  del  Its.     §  97. 
Kur()j>ean  treaties. 
Spanish-  .\ineriean  treatie.s. 
Texas  di'bt. 
Fiji  (lel)ts. 
Hawaiian  debt. 
Cuban  del)t. 
Spanisli  argmnent. 
American  reply. 
Spanish  rejoinder. 
Anieriean  response. 
Closing  Spanish  argument. 
Extract  from  .\iueriean  ultimatum. 

7.  On  «'ontracts  and  concea«ions.     §  98. 

European  treaties. 

Case  of  Madagascar. 

Peace  negotiations  with  S])ain. 

Cuban  cases. 

Porto  Kican  cases. 

Manila  liailway  Co. 

Cable  concessions. 

Ca.-^e  of  Pondoland. 

Transvaal  concessions  commission. 

8.  On  private  rights.     §  99. 

Judicial  decisions. 
( Xlicial  opinions. 
Public  oliices. 
V.    Territorial  exi)ansion  of  T'nited  States. 

1.  I Kclarat ions  of  policy.     §100. 

2.  Louisiana.     §  101. 

.S.  The  KI(.ri<las.     §  102. 

4.  Texas.     §  l(i:;. 

Treaty  of  bSli). 

•  Question  of  limits  and  annexation. 

Texan  indejiendence. 

Annexation. 

5.  Oregon.     §  104. 

().  California  ami  New  Mt'xico.     §  lOo. 

7.  The  Me-silla  Valley.     §  10(5. 

8.  Alaska.     §  107. 

rka.«e  of  1821. 
Treaty  of  cession. 
Hotnidaries. 

9.  Hawaiian  Islands.     §  108. 

Early  relations. 

Mr.  Webster's  letter,  1842. 

President  Tyler's  message. 

Action  of  (ireat  Britain,  184.S. 

British- French  <leclaration. 

French  intervention:  .\merican  jxisition  and  treaty. 

Proj)<jse<l  annexation,  18.")4. 

Proposals  for  recii)rocity,  1855,  1867. 

lievival  of  annexation  project, 


TABLE    OF    CONTENTS.  257 

V.  Territorial  expansion  of  United  States — Continued. 
9.   Hawaiian  Islands.     §  108 — Continued. 
Ileeij)rocity  treaty,  1875. 
Assertions  of  American  predonunance. 
Renewal  of  reciprocity  treaty. 
Pearl  Harbor. 

Constitution  of  1887;  insurrection  of  188!). 
Death  of  Kalakaua;  succession  of  Liiiuokalani. 
Overthrow  of  monarchy,  1898;  treaty  of  annexation. 
Withdrawal  of  treaty. 
Proposal  to  restore  the  Queen. 

President  Cleveland's  message,  December  18,  1898. 
Formation  of  constitutional  Republic. 
,  Native  revolt,  January,  1895. 

New  annexation  treaty,  June  1().  1897. 

Protest  of  Japan,  and  its  withdrawal. 

Joint  resolution  of  annexation,  July  7,  1898. 

Transfer  of  sovereignty,  August  12,  1898. 

Provisional  measures:  consular  representation. 

Hawaiian  vessels. 

Navigation. 

Quarantine. 

Imnugration. 

Chinese. 

Claims. 

President's  message,  1900. 

10.  Siianish  West  Indies  (except  Cuba),  Philippines,  and  (Tuam.     §  109. 

Message  of  Queen  Regent,  July  22,  1898. 
President's  reply,  July  80,  1898. 
Spanish  note,  August  7,  1898. 
Protocol  of  August  12,  1898. 
Instructions  of  8eptend)er  16,  1898. 
Decision  as  to  the  Philippines. 
Occujjation  of  ("uba. 
Isle  of  Pines. 

11.  Tutuila,  and  other  Samoan  Islands.     §  110. 

Early  relations. 

Meade  agreement:  Pagoi)ago. 

Steinl)erger's  mission. 

Treaty  with  the  United  States. 

Treaties  with  Cermany  and  (ireat  Britain. 

American  rights  in  Pagopago. 

Native  disturbances  in  Samoa. 

Rei)risals  by  Germany. 

Action  of  the  I  'nited  States. 

Washington  conference,  1887. 

Rupture  of  status  quo. 

Attitude  of  the  United  States. 

Hostilities  between  Germany  and  Samoa. 

Instructions  to  Admiral  Kind)crly. 

President  Cleveland's  message,  Januaiy  15,  1889. 

Prince  Bismarck's  assurances. 

Renewal  of  conference. 

General  act  of  Berlin. 

II.  Doc.  551 17 


258  sovereignty:  its  acquisition  and  loss. 

^'.   Territorial  exj)ansion  of  Tniteil  States — ("ontiimed. 

11.  Tntuila  and  other  Saiiioan  Islands,     v;  1  U) — Continued. 

Dilliculties  in  administration. 

Strife  over  tiie  kin<rshii). 

Joint  c"onnnissit>n  of  treaty  jxiwers. 

Report  of  ^Ir.  Trij)p. 

Division  of  the  group. 

Tutuila,  and  tlie  harbor  of  l'a!.'oi)ajro. 

Titles  to  land, 
ll'.    Horseshoe  Reef;  lirooks  or  ?Iid\\ay  Islands; 

Wake  Island.      ><  111. 
lo.   (Juano  Islands. 

(1)  Lejzislation  of  ('on>;ress.      ^112. 

(2)  Conditions  of  appurtenance.     §113. 

Di,>-eovery. 
( )ccupatioii. 
Exi'euti\e  action. 
I'.ond. 

(3)  Riirht-^  ..f  tile  discoverer.     §114. 
(41   Lists  .  f  islan.ls.     §  115. 

14.   I'roposals  of  annexation. 
I  1  I   Canada.      ^J  IIH. 
(•2)   Salvador.      ^117. 
(.■>)  Cul>a.      s<IlS. 

(4)  Yucatan.     §lli). 

(o)  Islands  at  Panama.     §  ll'O. 

(tV)  Santo  Domin^fo;  Samana  Bay.     §  121. 

(7)  Islands  of  Ciilehra  and  Culebrita.     §122. 

IS)  Danish  W  est  Indies.     §  123. 

(IM  Mole  St.  Nicholas.     §  124. 

Sovoivigiity  may  hr  oaincd  of  lost,  as  the  case  may  bo,  (1)  h\  the 
ti'aiisfcr  of  tofiitoiy.  (-2)  h\  rcNoliition.  or  (o)  l)v  internal  develop- 
ment. ^Vo  may  discuss  tlicsc  modes  in  their  order  and  also  the  effects 
produced  by  a  chano-e  of  so\-ereioiity. 

I.    Tin:  A<<jriSITI(>X  OF  TERRITORY. 

1.   ()( cri'.vTioN. 

Title  ))y  occii])ation  is  oained  ))y  the  discovery,  use,  and  settlement 
of  territory  not  occupied  by  a  civilized  })<)\ver.  Di.scovery  oives  only 
an  inchoate  title,  which  must  t)e  contirmed  by  use  or  settlement. 

(  1   I     DiSCoVKUV. 


■•()n  th(Mlisco\-erv  of  this  immense  |.Vmerican)  cotitinent  the  nations 
of  Euro})e  were  eager  to  ap|)ropiiiite  to  themselves  so  nmch  of  it 
as  they  could  r(>sj)(M'ti\ ciy  ac(juire.  .  .  .  The  potentates  of  the  Old 
World  found  n<^  diflicidty  in  con\  incino-  them.selves  that  the}'  made 
ample  compensation  to  the  inhabitants  of  the  New.  l)v  bestowinji^  on 
thcMu  civilization  and  Christianity,  in  exchano-(^  for  indirtiited  independ- 


§  80.]  DISCOVERY.  259 

ence.  But.  u.s  they  were  nearly  all  in  pursuit  of  tlie  same  ()])j(H-t,  it 
was  necessary,  in  order  to  avoid  conflictinu-  settlcnients  and  consecjuent 
war  with  each  other,  to  establish  a  principle  wiiich  all  should  acknowl- 
edge as  the  law  ))y  which  the  ri^-hts  of  ac([uisition.  which  thcv  all 
asserted,  should  he  r('<j;'ulated  as  between  themselves.  This  })rinciple 
was  that  discovery  ga\e  title  to  the  govei-nnient  by  whose  subjects,  or 
b\'  whose  authority,  it  was  made,  against  all  other  Kuropean  govern- 
ments, which  title  might  be  consummated  by  possession.  The  exclu- 
sion of  all  other  P^uropeans  necessarily  gave  to  the  nation  niaking  the 
discovery  the  sole  right  of  acquiring  the  soil  from  the  natives,  and 
establishing  settlements  upon  it.** 

Marshall,  ('.  J.,  .Tohnson  c  ^Mcintosh  (  ISl'Si,  S  Wheatoii,  nVA. 

See  supra,  §  It).  Sec,  also,  Mr.  Marry,  Sec.  ef  State,  to  Mr.  TliuiiipH.ui,  Dec. 
27,  lS.->3,  4-2  3IS.  Doiii.  Let.  124. 

The  FLnglish  possessions  in  America  were  not  claimed  ]»y  right  of 
con(iuest.  but  of  discovery,  and  were  held  l)y  the  King,  as  the  repre- 
sentative of  the  nation,  for  whose  })enetit  the  discovery  was  made. 
When  the  Revolution  took  place,  the  people  of  each  State,  in  their 
sovereign  character,  ac({uired  the  al)solute  right  to  all  their  navigaVde 
waters,  and  the  soil  with  them. 

The  grant  from  Charles  II  to  the  Duke  of  York  of  the  territory 
which  now  forms  the  State  of  New  Jersey,  passed  to  the  Duke  the  soil 
under  the  navigal)le  watei's  as  one  of  the  royalties  incident  to  the 
powers  of  government,  which  were  also  granted,  to  be  held  by  him  in 
the  same  manner  and  for  the  same  purposes  as  this  soil  had  been  pre- 
viously held  by  the  Crown,  and  the  same  is  true  of  the  grantees  of 
the  Duke.  And  when  these  grantees  surrendered  to  the  Crown  all 
the  powers  of  government,  the  title  to  the  soil  passinl  to  the  Crown, 
and  at  the  devolution  became  vested  in  the  Stiite  of  New  Jersey. 
Martin  r.  WaiWell,  IH  Peters,  367. 

"How  far  the  mere  discoxcry  of  a  territory  which  is  either  unset- 
tled, or  settled  only  l)y  sa\ages.  gives  a  right  to  it.  is  a  (juestion  which 
neither  the  law  nor  the  usages  of  nations  has  yet  definitely  settled. 
The  opinions  of  mankind,  upon  this  point,  have  undeigonc^  \-ery  gi-eat 
changes  with  the  progress  of  knowledge  and  civilization.  Yet  it  will 
scarcely  be  denied  that  rights  ac(|uired  1)y  the  general  consent  of  ci\  il- 
i/ed  nations,  even  under  th(^  erroneous  \iews  of  an  uiienliglit(Mied  age, 
are  protected  against  the  changes  of  oi)inion  resulting  mendy  from 
the  more  liberal,  or  the  more  just,  views  of  after  times.  i'lie  right  of 
nations  to  countries  discovered  in  the  sixtei'iith  century  is  to  be  deter- 
mined by  the  law  of  nations  as  understood  '//  //'"/  f>iiir.  and  not  by 
the  im])roved  and  mor<^  enlightiMied  o])ini()n  of  tlir(^(^  centuries  lat(M'.*' 

Mr.  rpshiir.  St-c.  of  Statv,  to  Mr.  {•Acrctt,  <>.i.  !i,  lS4:i,  MS.  Jirst.  (ireat  Britain, 
XV.  148,149. 


260  sovereignty:  its  acquisition  and  loss.  [§  80. 

•pile  ur(>uiKl  tukcn  \>y  the  British  Govenunent,  that  a  discovery 
iiiadc  1>\  a  i)rivato  individual,  in  the  prosecution  of  a  private  enter- 
prise, ofives  no  right,  cannot  be  allowed.  There  is  nothintr  to  support 
it.  eith(n"  in  the  reason  of  the  case  or  in  the  law  and  usage  of  nations. 
To  say  the  least  of  it.  if  a  discovery  so  made  confers  no  right,  it  pre- 
vents any  other  nation  from  accpiiringa  right  ))y  su])sequent  discovery, 
although  made  under  the  authority  of  Crovernment.  and  with  an  express 
viev,  to  that  object.  In  no  just  acceptation  of  the  term  can  a  country 
be  said  to  l)e  "discovered.'  if  its  existence  has  been  previously  ascer- 
tained by  actual  sight.  This  is  a  mere  (juestion  oifuct.  which  a  private 
person  can  s-^ttle  as  well  as  a  })ublic  agent.  But  be  this  as  it  may, 
Meares  himself  was  but  the  agent  of  a  private  trading  company,  with- 
out any  authority  whatever  from  his  (lovernment,  so  that,  in  this  respect, 
his  diseovery  stands  upon  no  better  ground  than  that  of  Captain  Gray." 

l.I.  lrt.5. 

••  Discovery  alone  is  not  enough  to  give  dominion  and  jurisdiction  to 
the  sovereign  or  government  of  the  nation  to  which  the  discoverer 
Ixdongs;  such  discovery  must  be  followed  by  possession.  'All  man- 
kind.' says  that  eminent  and  impartial  writer  on  international  law. 
Vattel.  "have  an  equal  right  to  things  that  have  not  yet  fallen  into  the 
possession  of  anyone,  and  those  things  belong  to  the  person  who  tirst 
takes  possession  of  them.  When,  therefore,  a  nation  tinds  a  country 
uniidiabited  and  without  an  owner,  it  may  lawfully  take  possession  of 
it;  and  aftei'  it  has  sufficiently  made  known  its  will  in  this  respect,  it 
cannot  l)e  deprived  of  it  V>v  another  nation.'  'Thus,' continues  the 
learned  author,  "navigators  going  on  voyages  of  discovery,  furnished 
with  a  commission  from  their  sovereign,  and  meeting  with  islands  or 
other  lands  in  a  desert  state,  have  taken  possession  of  them  in  the  name 
of  their  nation,  and  this  title  has  been  usually  respected.  j)rovided  it 
was  soon  after  followed  by  a  real  possession.'  (Vattel,  C"h.  XVIIL, 
page  '.♦8,  Philadelphia  edition.  IS41>.)" 

Mr.   Fish,  S.-r.  ..f  State,  t..  Mr.    Preston,    Dec.  .SI,  1872,   MS.  Notes  to  Ilayti, 
I.  12.i,  12H. 

"The  right  of  discoAcry  is  not  recognized  in  the  Roman  law  uidess 
followed  by  occupation,  or  uidess  the  intention  of  the  sovereign  or 
state  to  take  possession  be  declar«»d  or  made  known  to  the  world. 
And  it  nuist  be  conceded  that  modm-n  dij[)lomatists  and  publicists 
incline  to  the  opinion  that  mere  transient  discovery  amounts  to  noth- 
ing unless  followed  in  a  reasonalde  time  by  occupation  and  settlement, 
more  oi"  less  permanent,  under  th«»  sanction  of  the  state." 

Mortimer  r.  \.  Y.  Elevate.l  R.  K.  Co.  (1SS9),  (5  X.  Y.  Snpj..,  898. 

■'The  fact  that  thi^  discoveries  of  an  American  citizen  tirst  icvealc  1 
the  importance  of  the  Congo  country  seems  to  justify  this  Government 


>j  81]  SETTLEMENT.  261 

ill  chiiniing  a  special  influence  upon  the  determination  of  the  questions 
touching  all  foreign  arrangements  for  the  administration  of  that 
region,  especially  as  to  its  commerce."' 

Mr.  Frelinghuysen,  Sec.  of  State,  to  -Mr.  Chamller,  Xov.  22,  18S4,  158  MS.  Doth. 
Let.  267. 

(2)    SETTLEMENT. 

§  81. 

••  By  the  law  of  nations,  recognized  ])y  all  civilized  States,  dominion 
of  new  territory  may  be  acquired  by  discovery  and  occupation,  as 
well  as  l)y  cession  and  conquest;  and  when  citizens  or  subjects  of  one 
nation,  in  its  name,  and  by  its  authority  or  with  its  assent,  take  and 
hold  actual,  continuous  and  useful  possession,  (although  only  for  the 
purpose  of  carr^-ing  on  a  particular  l)usiness,  such  as  catching  and 
curing  fish,  or  working  mines.)  of  territory  unoccupied  by  any  other 
government  or  its  citizens,  the  nation  to  which  they  belong  may  exer- 
cise such  jurisdiction  and  for  such  period  as  it  sees  fit  over  territory 
so  acquired.  This  principle  afiords  ample  warrant  for  the  legislation 
of  Congress  concerning  guano  islands.  Yattel,  lib.  1,  c.  18;  Wheaton 
on  International  Law  (8th  ed.)  sections  161,  165.  176,  note  101;  Hal- 
leck  on  International  Law  (8d  ed.)  c.  6,  sections  7,  15;  1  Phillimore 
on  International  Law  (3d  ed.)  §§  227,  229.  23o.  232,  212;  1  Calvo 
Droit  International  (1th  ed.)  sections  266,  277,  300;  Whiton  v.  Albany 
Ins.  Co..  1(19  Ma.ss.  21.  31." 

Jone.s  /•.  United  States  (1890),  i:]7  V.  S.  202,  212. 

"The  law  of  nations  will  not  acknowledge  the  property  and  sover- 
eignty of  a  nation  over  any  uninhabited  country,  except  where  actual 
possession  has  been  taken  and  settlement  formed,  or  of  which  it  makes 
actual  use.  'When  navigators.'  says  Vattel.  'have  met  with  divsert 
countries,  in  which  those  of  other  countries  had.  in  their  transient 
visits,  erected  some  monument  to  show  their  having  taken  possession 
of  them,  they  have  paid  as  little  regard  to  that  empty  ceremony  as  to 
the  regulation  of  the  Popes,  who  divided  a  great  part  of  the  world 
between  the  crowns  of  Castile  and  Portugal.'  (Book  1,  Chap.  XVIII.. 
Sec.  209.)" 

Black,  At.-(4en.,  ]85it,  9()p.  364,  868. 

"Martens  wrote  in  1789  to  the  same  effect  [as  Vattid.  supra,]  in  his 
Precis  du  droit  dr.s  r/c^z/.v,  §  37;  and  so  did  Klul)er  in  1819  in  his  Droit 
des  gen><^  %  126. 

"The  principle  and  rule  to  be  deduced  respecting  title  to  unoccujjied 
regions,  or  those  in  the  possession  of  the  aboriginal  inhal)itants,  from 
the  writings  of  the  accepted  teachers  of  public  law.  are  that  acciuisition 
and  title  may  be  original  and  derivative:  that  original  title  includes 
discovery,  use.  and  settlement,  which  are  ingredients  of  occupation, 


202  soverekjnty:  tts  acquisition  and  loss.  [§  81. 

and  will  constitute  a  valid  titlo,  l)ut  that  doi-ivative  title  conies  of  con- 
(|ue.st.  treaty,  and  ti'ansfer.  My  opinion  is  that  the  fjiiglish  title  to 
so\ cieignty  and  dominion  in  the  province  of  New  Netherlands  and  the 
colony  of  New  York  was  not  orijjfinal  in  this  sense,  but  was  derivative 
from  conquest,"" 

Opinion  of  Mr.  Sidney  \\\'l)stt'r  on  tlic  hnv  of  marriage  in  New  York  in  1772. 

The  claim  of  the  Knoflish  to  title  to  New  York  by  discovery  has  been 
criticised  on  the  oround  that  neith(M-  of  the  Cabots  landed  in  or  near 
New  York  or  saw  its  coast.  Tiie  courts  of  N(mv  York,  however,  hold 
that  what  the  Enolish  did  was  sutlicient  to  give  them  title  by  discov- 
ery, and  that  such  a  title  is  superior  to  the  Indian  title.  These  deci- 
sions prociH'd  upon  the  theoi'v  tiiat  the  clain)  of  the  Dutch  to  title  by 
discovery  was  contested  by  the  Eno-jish  from  the  start,  and  that  the 
English  finally  made  good  tlieir  claim  l»y  the  sNvord.  For  this  reason 
it  is  held  that  neither  the  Dutch  nor  the  Roman  law"  ever  prevailed  in 
the  State  of  New  York  dc  jiiri\  l»ut  that  the  conmion  law  of  P^ngland 
is  the  soiux-e  of  the  local  law.  This  doctrine  is  not  ati'ected  by  the 
cas<>s  in  which  the  validity  of  Dutch  grants  has  been  upheld  as  between 
individuals. 

Mortimer  r.   N.   Y.    Hlevuted   K.    K.   (\..   (1SS9),   6   N.   Y.     Siipp.    898,   citing 
Ketclmm  r.  lluckley,  !>!>  V.  S.  188. 

'"Title  by  settlement.  lik(>  title  by  discovery,  is  of  itself  an  imper- 
fect title,  and  its  validity  will  be  conditional  upon  the  territoiy  being 
vacant  at  the  time  of  the  settlement,  either  as  never  having  becMi  occu- 
pied, or  as  having  Ixmmi  iibandoned  by  the  previous  occupant.  In  the 
former  case,  it  rc^solves  itself  into  title  ])y  occupation;  in  the  latter,  the 
consent  of  the  previous  occu[)ant  is  either  expressed  bv  some  conven- 
tion, or  presumed  from  the  possession  remaining  undisputed.  *  *  * 
The  last  settlement.  wh(Mi  contirmed  hx  a  certain  pi'esci'iption,  may 
found  a  good  t(M-ritorial  title.  Again,  the  presumption  of  law  will 
always  be  in  fa\'oi'  of  a  title  ])y  settlement.  'Conunodum  auteui 
possidendi  in  eo  est,  (piod.  etiamsi  ejus  res  non  sit,  qui  possidet,  si 
modo  actor  non  potuerit  suam  esse  probare,  remanet  sue  loco  posses- 
sio;  pi'opter  (juam  causam.  cum  obscura  sunt  utriusque  jura,  contra 
petitorem  judicari  solet."     (Inst.  Lib.  iv.,  tit.  15,  §  4.) 

''Where  title  by  settlement  is  siq)eradded  to  title  by  discovery,  the 
law  of  nations  will  acknowledge^  th(>  settlers  to  have  a  perfect  title; 
but  where  title  ))v  settlement  is  opposed  to  title  by  discovery, 
although  no  convention  can  b(>  cited  in  proof  of  the  discovery  having 
l)een  waived,  still,  a  tacit  accpiiescence  on  the  part  of  the  nation  that 
asserts  the  disco\ery.  during  a  reasonable  lapse  of  time  since  the  set- 
tlement has  tak(Mi  ])lace,  will  bar  its  claim  to  disturl)  the  settlement." 

T\vis.<,  The  <  )regon  Territory,  123-124.     See,  alf-o,  Wlieaton,  Elements,  Part  II., 
chaj).  iv,  §  5. 


§  81.]  SETTLEMENT.  263 

"  The  principles  which  are  upplicuhic  to  the  case  are  such  as  are 

dictated  ])v  reason,  and  have  l)een   adopted   in  pra<'- 
Extent  of  pos-     ,  •        i        i-. "  .        ,         ,.  .  , 

session  '®*    -    ^"^"'op^^"  powers,  in  the  discoveries  and  ac- 

quisitions which  they  respectively  made  in  the  New 
World:  .  .  .  The  tirst  of  these  is,  that  when  any  European  nation 
takes  possession  of  any  extensive  seacoast,  tiiat  possession  is  under- 
stood as  extending  into  the  interior  country,  to  the  sources  of  the 
rivers  emptying  within  that  coast,  to  all  their  branches  and  the  coun- 
try they  cover;  and  to  give  it  a  right,  in  exclusion  of  all  other  nations, 
to  the  same.  .  .  .  The  second  is,  that,  whenever  one  European  nation 
makes  a  discovery,  and  takes  possession  of  any  portion  of  that  conti- 
nent, and  afterwards  another  does  the  same  at  some  distance  from  it. 
where  the  boundary  between  them  is  not  determined  ])y  the  principle 
above  mentioned,  the  middle  distance  becomes  such  of  course.  .  .  . 
A  third  rule  is.  that,  whenever  any  European  nation  has  thus  acquired 
a  right  to  any  portion  of  territory  on  that  continent,  that  right  can 
never  be  diminished  or  atfected  by  any  other  power,  by  virtue  of  pur- 
chases made,  by  grants  or  conquests  of  the  natives  within  the  limits 
thereof." 

Messrs.  C.  Pinckney  and  ^lonroe,  V.  S.  minister:^,  to  Mv.  Cevallo^;,  Spanish 
Minister  of  State,  April  2(1,  ISOo,  Am.  State  Papers,  For.  Kel.,  ]I.  0H4,  on 
the  boundaries  ot  the  Louisiana  territory.  Adopted  by  PhiHiinore,  Int. 
Law,  I.  §  CCXXXVIIL;  and  by  Field,  Int.  Code,  2nd  "ed.,  art.  7-5. 

"The  two  rules  generally,  perhaps  universally,  recognized  and 
con.secrated  by  the  usage  of  nations,  have  followed  from  the  nature  of 
the  subject.  By  virtue  of  the  tirst,  prior  discovery  gave  a  right  to 
occupy,  provided  that  occupancy  took  place  within  a  reasonable  time 
and  was  ultimately  followed  by  permanent  settlements  and  by  the 
cultivation  of  the  soil.  In  conformity  with  the  second,  the  right 
derived  from  prior  discovery  and  settlement  was  not  confined  to  the 
spot  so  discovered  or  first  settled.  The  extent  of  territory  which 
would  attach  to  such  first  disco\'erv  or  settlement  might  not  in  every 
case  be  precisely  determined.  Rut  that  the  first  discovery  and  suit- 
sequent  settlement  within  a  reasonable  time,  of  the  mouth  of  a  ri\'er. 
particularly  if  none  of  its  branches  had  been  explored  prior  to  such 
di.scovery.  gave  the  right  of  occupancy  and  ultimately  of  sovereignty 
to  the  whole  country  drained, l)y  such  river  and  its  several  branches, 
has  been  generally  admitted.  And  in  a  question  l^etween  the  United 
States  and  Great  Britain  her  acts  have  with  propriety  been  appealed 
to  as  showing  that  the  principles  on  which  they  rely  accord  with  her 
own." 

Mr.  Gallatin,  U.  S.  plenipo.,  to  Mr.  Addin^rton,  British  plenipo.,  Deo.  19,  1826, 
Am.  St.  Pap.,  For.  Rel.,  VL  667. 


264  sovereignty:  its  acquisition  and  loss.  r§^^- 

"That  continuity  furni.shes  a  just  foundation  for  a  claim  of  territoiv, 
in  connection  with  those  of  discovery  and  occupation, 
on  mui  y.  ^q^j^  «eeni  uncjuestionahle.  It  is  admitted  by  all,  that 
neither  of  them  is  limited  ])y  the  precise  spot  discovered  or  occupied. 
It  is  evident  that,  in  order  to  make  either  available,  it  must  extend  at 
least  some  distance  beyond  that  actually  discovered  or  occupied;  but 
how  far,  as  an  abstract  question,  is  a  matter  of  uncertainty.  It  is  sub- 
ject, in  each  case,  to  be  influenced  by  a  variety  of  considerations.  In 
the  case  of  an  island,  it  has  been  usually  maintained  in  practice  to 
extend  the  claim  of  discovery  or  occupancy  to  the  whole;  so  likewise 
in  the  case  of  a  river,  it  has  been  usual  to  extend  them  to  the  entire 
region  drained  by  it,  more  especially  in  cases  of  a  discovery  and  settle- 
ment at  the  mouth;  and  emphatically  so  when  accompanied  by  explo- 
ration of  the  river  and  region  through  which  it  flows.  Such,  it  is 
believed,  may  be  affirmed  to  be  the  opinion  and  practice  in  such  cases 
since  the  discovery  of  this  continent.  How  far  the  claim  of  continuity 
may  extend  in  other  cases  is  less  perfectly  defined,  and  can  be  settled 
only  by  reference  to  the  circumstances  attending  each.  When  this 
continent  was  tirst  discovered,  Spain  claimed  the  whole,  in  virtue  of 
the  grant  of  the  Pope;  but  a  claim  so  extravagant  and  unreasonable 
was  not  acquiesced  in  by  other  countries,  and  could  not  be  long  main- 
tained. Other  nations,  especially  England  and  France,  at  an  early 
period  contested  her  claim.  They  fitted  out  voyages  of  discovery, 
and  made  settlements  on  the  eastern  coasts  of  North  America.  They 
claimed  for  their  settlements,  usually,  specific  limits  along  the  coasts 
or  bays  on  which  they  were  formed;  and,  generally,  a  region  of  cor- 
responding width  extending  across  the  entire  continent  to  the  Pacific 
Ocean.  Such  was  the  character  of  the  limits  assigned  by  England  in 
the  charters  which  she  granted  to  her  former  colonies,  now  the  Unite>l 
States,  when  there  were  no  special  reasons  for  varying  from  it.  How 
strong  she  regarded  her  claim  to  the  region  convej^ed  by  these  char- 
ters and  extending  westward  of  her  settlements,  the  war  between  Jutl- 
and France,  which  was  terminated  by  the  treaty  of  Paris,  in  17t)3, 
furnishes  a  striking  illustration.  That  great  contest,  which  ended  so 
gloriously  for  England,  and  eflected  so  great  and  durable  a  change  on 
this  continent,  commenced  in  a  conflict  between  hei-  claims  and  those 
of  France,  resting  on  her  side  on  this  verj-  right  of  continuity, 
extending  westward  from  her  settlements  to  the  Pacific  Ocean;  and, 
on  the  ])art  of  France,  on  the  same  I'ight.  but  extending  to  the  region 
drained  by  the  Mississippi  and  its  waters,  on  the  ground  of  settlement 
and  exploration.  Their  resi)ective  claims,  which  led  to  the  war,  first 
clashed  on  the  river  Ohio,  the  waters  of  which  the  colonial  charters, 
in  their  western  extension,  covered;  })ut  which  France  had  been 
unquestionably  the  Hrst  to  settle  and  explore.  If  the  relative  strength 
of  these  difterent  claims  mav  be  tested  bv  the  result  of  that  remark- 


§  81.]  SETTLEMENT.  205 

able  cont*\><t.  that  of  continuiU'  wostwai-d  must  ho  pronouiicod  to  be 
the  stronger  of  the  two.  England  has  had  at  least  the  advantage  of 
the  result,  and  would  seem  to  be  foreclosed  against  eontestitig-  the 
principle,  particularly  as  against  us,  who  contribut<'d  so  much  to  that 
result,  and  on  whom  that  contest  and  her  example  and  pretensions, 
from  the  first  settlement  of  our  country,  have  contributed  to  impress 
it  so  deeply  and  indelibly.  But  the  treaty  of  17t>.'^>.  which  terminated 
that  memorable  and  eventful  struggle,  yielded,  as  has  ])een  stated, 
the  claims  and  all  the  chartered  rights  of  the  coloni(\s  beyond  the 
Mississippi." 

Mr.  Calhoun,  Sec.  of  State,  to  Mr.  Pakenhani,  British  minister,  Sept.  o,  1S44, 
touching  the  <jue.stion  of  title  to  Oregon:  S.  K\.  Doc.  1,  29  Cong.  1  .>^c!J.«. 
149;  H.  Ex.  Doc.  2,  29  Cong.  1  se.«s.  149:  Calhoun's  Works,  V.  432. 

Hall,  in  his  work  on  International  Law  (4th  e<l.,  110-111,  note),  (jue.^tions  tiie 
accuracy  (^f  Mr.  Calhoun's  statement  that  Great  Britain,  before  the  jjeace 
of  1763,  .maintainefl  against  France  the  pretension  that  the  limits  of  the 
f^nglish  settlements  extended  across  the  entire  continent,  and  suggests  tiiat 
the  statement  had  ''no  better  ground  tlian  the  fact  that  English  colonial 
grants  were  made  without  intericjr  limits — a  fact  which  by  it.«elf  is  of  no 
international  value."  It  is  no  doubt  true  that  a  pretension  by  a  single 
power  inconsistent  with  the  rules  <  if  international  law  posses.«es  little,  if  any, 
international  value;  but  when  the  learned  author  spoke  of  the  English 
colonial  gran  t.s  as  being  "without  interior  limits,"  beseems  to  have  labored 
under  the  im])ression  that  their  westerly  extension  was  merely  indefinite. 
In  reality,  they  were  expressly  declared  to  traverse  the  continent.  The 
patent  granteil  by  James  I.,  Nov.  3,  1620,  to  the  Plymouth  Company, 
reached  "from  sea  to  sea."  The  charter  of  Mas.-jachusetts  Bay,  March  4, 
1628,  purjKjrted  to  operate  "from  the  Atlantick  and  AVesterne  Sea  and 
Ocean  on  the  east  jiarte  tf)  the  South  Sea  on  the  west  parte."  The  old 
patent  for  Connecticut,  as  well  as  the  new  cliarter  of  1662,  containe<l  simi- 
lar words,  as  did  also  the  grants  of  Carolina  (1663)  and  (ieorgia  (1764). 
(Papers  relating  to  the  Treaty  of  Washington,  V.  a,  21-22.  ) 

See,  as  to  the  settlement  of  tiie  Oregon  (|uestion,  Moore,  Int.  Arbitrations,  I., 
Chap,  vii.,  196  et  secj. 

Th(^  ({uestion  of  a  claim  of  title  on  the  ground  of  contiguity  "may 
be  regarded  as  generally  defined  by  the  celel)rated 
on  igui  y.  c'orrespondence  of  Mr.  AVe])ster  with  the  Peruvian 
Government,  in  1S52.  in  the  Lo))Os  Islands  controversy,  in  which  Mr. 
Webster  laid  down  the  proposition  that  inasmuch  as  according  to  'the 
well-settled  rule  of  modern  public  law.  the  right  of  jurisdiction  of  any 
nation  whose  territories  may  border  on  the  sea.  e.xtends  to  tlw  distance 
of  a  cannon-shot,  or  three  marine  miles  from  the  shore,  this  being  the 
supposed  limit  to  which  a  defence  of  the  coast  from  the  land  can  be 
extended,'  the  whole  discussion  must  turn  upon  this,  viz:  "The  Lobos 
Islands  lying  in  the  open  ocean,  so  far  from  any  continental  possessions 
of  Peru  as  not  to  lielong  to  that  country  by  the  law  of  i)ro.\imity  or 
adjacent  position,  has  the  Government  of  that  coimtry  exercised  such 
unequivocal  acts  of  absolute  .sovereignty  and  ownership  over  them  as 


266  sovereignty:  its  ACQriSTTiox  axd  loss.  [§  81. 

to  iiix  <■  Ih'I-  a  riirlii  i<»  liu'ii  cxclu.'-ix  e  p<_)-^.s('.ssioii.  a.s  against  the  United 
States  and  their  citizens.  l»y  the  law  of  undisputed  possession f'  .   .   . 

•'Tile  Peruvian  Government  piov«'d  tliat  .  .  .  its  right  to  the 
islands  rested  .  .  .  upon  substantial  and  unequivocal  acts  of  juris- 
diction and  possession  exercised  over  them  from  time  immemorial. 
It  was  ascertained  .  .  .  that  as  early  as  1.590  the  people  were  in 
the  habit  of  taking  guano  from  the  islands  off  the  coast,  and  that  the 
territory  had  Immmi.  by  puldic  d«>cree.  specifically  annexed  to  the  prov- 
inces or  districts  of  th<^  Republic.    ... 

*"lt  appeared  .  .  .  that  Lord  Palmerston  had  suggested,  in  1834, 
that  the  proximity  of  the  islands  to  Peru  would  give  her  a  prima  facie 
claim  to  them.  Mr.  Webster  said  no.  however,  and  that  it  was  rcrtain 
that  any  such  \  iew  was  iuconect.  l)ecause  the  distance  of  the  Lobos 
Islands  fiom  the  shore  of  Peru  was  'five  or  six  times  greater  than  the 
three  maiine  miles  extend."  .   .   . 

"In  the  Aves  Island  case,  the  Lnited  States  insisted,  in  the  same 
way.  that  it  should  be  shown  aftirmatively  that  \'enezuela  constiintly 
maintained  such  territorial  sovereignty  and  possession  of  the  island 
as  other  govei"nments  and  their  citizens  were  bound  to  respect.  (Aves 
Island  case.  S.  Kx.  Doc.  lo.  SH  Cong.  2  sess.  -i-i.").)  .   .   . 

"The  island  of  Xavassa.  said  to  be  somewhere  from  '11^  to  35  miles 
from  the  southwest  part  of  Ilayti.  was  explored  in  July,  1857,  by  cit- 
izens of  the  I'nited  States,  who  discovered  that  it  contained  deposits 
of  guano,  and  the  United  States  asserted  a  right  to  the  territory  under 
the  act  of  ls5ti.  ...  It  was  tirmly  maintained  l)v  ]Mr.  Fish  |in  a 
note  to  the  Ilaytian  nunister  of  Dec.  31.  1S72J  that  as  Hayti  was 
unal)le  to  show  an  iirtuiil  jms.s.ssln/,  <ind  "sr  of  the  island,  or  an  exten- 
sion and  exeivise  of  jurisdiction  and  authority  over  it.  before  the  dis- 
covery of  guano  l)y  the  Americans,  in  l.s57.  her  pretension  of  propri- 
etorship of.  and  sovereignty  over,  the  island  was  inadmissil)le.  and 
that  the  absence  of  proof  of  such  acts  on  her  part  could  not  be  sup- 
plied hy  tht'  fact  of  the  ])roxiniity  of  the  island  to  her  territory,  and 
that  the  island  had.  uj)  to  the  date  of  the  recent  discovery,  remained 
a  wilderness  Mr.  Fish  said:  "'riie  utmost  to  which  the  argument  in 
her  behalf  amounts  to.  is  a  claim  to  a  (■<nistriiftir,  possession,  or  rather 
to  a  right  of  posr^ession;  but  in  contemplation  of  international  law 
such  claim  of  a  right  to  possession  is  not  enough  to  establish  the  right 
of  a  nation  to  exclusive  territorial  sovereignty.  (  Citing  Vattel,  Bk.  1. 
chap,  xviii.  sec.  2os.)  Although  fifteen  years  ha\  e  elapsed  since  Dun- 
can and  Cooper  discovered  and  settled  upon  the  island,  no  evidence 
has  been  adduced  by  Hayti  going  to  establish  the  affirmative  proposi- 
tion of  its  ever  having  been  occupied,  or  even  showing  an}'  act  of 
positive  jurisdiction  ever  having  been  exercised  over  it  bv  that  gov- 
ernment." ... 

"The  Ilaytian  minister  having  recurred  again  to  the  causes  of  Alta 
\'elu  and  Cavo  \'erde.  Mr.  Fish,  in  his  second  note  of  the  loth  of  June, 


^  81.  SETTLEME"!SrT  267 

iSTo.  disposed  of  that  puit  of  tlu-  uruuimMit  in  tliis  way:  '.  .  .  In  tlic 
case  of  Altu  \  «da  it  was  sliowii  to  have  Itccii  iiuludfd  t»y  naiiie  w  itliiti 
a  political  and  also  within  a  judicial  district  of  San  Doniing-o.  .  .  . 
As  to  Cavo  Verde,  both  occupancy  and  jurisdiction  were  siiown  to 
have  been  exercised  on  that  island  by  the  local  authorities  of  Jamaica 
long  previous  to  the  discovery  of  »^uano  on  it  by  citizens  of  the  I'nited 
States.  .  .  .  The  exercise  of  jurisdiction  is  one  of  the  hio-hest  evi- 
dences of  sovereignity;  the  extension  of  th(»  laws  of  an  empire  oxor  a 
colonial  possession  forms  one  of  the  chief  muniments  of  the  nation's 
title  to  sovereignty  ovei'  the  colony:  and  the  absence  of  these  impor- 
tant links  in  th<*  chain  of  testimony  ad\anced  in  support  of  Hayti's 
claim  to  sovereignty  over  Navassa.  must.  1  sul>mit.  appear  to  any  rea- 
sona))le  mind  fatal  to  that  claim,  nor  can  this  al)sence  be  supplied  by 
the  facts  of  contiguity,  or  that  Navassa  had.  up  to  the  date  of  l*eter 
Duncan's  discovery,  remained  a  wilderness."*" 

Brief  uf  J.  Hubley  A.^hton,  K.stjuire,  CouiifJtl  for  tlif  United  State.>J,  iu  the  ia.<e 
of  (jiowen  and  C'opeland  v.  Venezuela,  No.  l(i,  L'.  S.  and  Venezuelan 
Claims  Coinniii^sion,  convention  of  Dec.  5,  1SS.5. 

See  Moore,  Int.  Arbitrations,  IV.  3354. 

An  examination  of  the  older  cases,  in  which  title  rests  upon  occu- 
pation, will  sho"'  that  in  most  of  them  '"the  acts  relied 
Berlin  declara-  .    .  , ., .  .         i       .       .  i  i.      i       i 

upon  as  giving  title,  previously  to  the  actual  plan- 
tation of  a  colony,  have  been  scattered  at  somewhat 
wide  intervals  ovov  a  long  space  of  time.  I'titil  recently  this  has 
been  natural,  and  indeed  ine\'itable.  \N'h(M)  \'oyagi>s  of  discovery 
extended  over  years,  when  the  coasts  and  ai'chipelagoes  lying  open 
to  occupation  >eemed  inexhaustible  in  their  vastness.  when  states 
knew  little  of  what  their  own  agents  ov  the  agents  of  other  coim- 
tries  might  be  doing,  and  when  communication  with  established 
posts  was  rare  and  slow,  isolated  and  imperfect  acts  were  propcM'ly 
held  to  have  meaning  and  value.  .  .  .  Hut  of  late  years  a  marked 
change  has  occurred.  Except  in  some  parts  of  the  interior  of 
Africa,  there  are  few  patches  of  tln^  eartii's  surface  th«>  ownership 
of  which  can  be  j)laced  in  doubt.  ...  A  tendency  has  conseciuently 
declared  itself  to  exact  that  more  solid  grounds  of  title  shall  l>e  sliown 
than  used  to  be  adopted  as  suthcient.  The  most  notable  evidence  of 
this  tendency  is  afforded  by  the  declaration  adopted  at  the  Berlin  Con- 
ference of  i.sso.  By  that  declaration  Au.stria.  Belgium.  Denmark. 
France,  (iermany.  (ireat  Britain.  Italy,  the  Netiierland>.  Portugal. 
Russia.  Sweden  and  Norway.  Turkey,  and  the  I'liited  States  agreed 
that  'any  power  which  henceforth  takes  possession  of  a  tract  of  land 
on  the  coasts  of  the  African  continent  outside  of  its  present  posses- 
sions, or  wdiich.  being  hitherto  without  such  possessions,  shall  ac(juire 
them,  as  well  as  the  power  which  a.ssumes  a  protectorate  there,  shall 
accompan}'  the  respective  act  with  a  notitication  thereof,  addressed  to 


268  sovereignty:  its  acquisition  and  loss.  [§  81. 

tho  other  sio-natorv  powers  of  the  present  uct.  in  order  to  enable 
them,  if  need  l)e,  to  make  good  any  claims  of  their  own,'  and  'the  sig- 
natory powers  of  the  present  act  recognize  the  oljligation  to  insure 
the  establishment  of  authority  in  the  regions  occupied  by  them  on  the 
coasts  of  the  African  continent  sufficient  to  protect  existing  rights, 
and,  as  the  case  may  be,  freedom  of  trade  and  transit  under  the  con- 
ditions agreed  upon.*  .  .  .  The  declaration,  it  is  true,  affects  only 
the  coasts  of  the  continent  of  Africa;  and  the  representatives  of 
France  and  Russia  were  careful  to  make  formal  reservations  directing 
attention  to  this  fact;  the  former,  especially,  placing  it  on  record  that 
the  island  of  Madagascar  was  excluded.  Nevertheless,  an  agreement, 
made  between  all  the  states  which  are  likelv  to  endeavor  to  occupy 
territory,  and  covering  nuich  the  largest  spaces  of  coast  which,  at  the 
date  of  the  declanition,  remained  unoccupied  in  the  world,  can  not  but 
have  great  influence  upon  the  development  of  a  generally  binding 
rule." 

Hall,  Int.  Law,  4th  ed.  118-119. 

Nurnerou.'j  notiticatioiiH  relatinK  to  new  acquisitions  or  to  the  delimitation  of 
territory  or  of  .spheres  of  intiuence  have  heen  given  under  the  Berlin 
declaration.  (See  For.  Rel.  1885,  389,  390,  441-442;  For.  Rel.  1888,  II. 
1058.) 

The  snhject  is  fully  examined  by  Westlake,  Int.  Law,  155  et  seq. 

In  -several  recent  cases  notifications  of  claims  and  acquisitions  have  been  given 
voluntarily  in  respect  of  territories  not  within  the  Berlin  declaration. 

The  general  act  of  the  Berlin  Conference,  in  which  the  declaration  appears, 
was  not  submitted  to  the  Senate  of  the  L^nited  States,  and  the  United 
States  (.Tovernmi'ut  did  not  become  a  party  to  it;  but  it  is  not  understood 
tliat  this  was  due  to  any  objection  to  the  attempt  to  substitute  a  real  for  a 
merely  constructive  occupation.     (For.  Rel.  1885,  442.) 

By  the  protocol  of  March  7,  1885,  l)etween  Germany,  Great  Britain,  and  Spain, 
the  two  former  i)owers  recognized  "the  sovereignty  of  Spain  over  the 
places  effectively  occupied,  as  well  as  over  those  that  are  not  yet  so,  of  the 
Sulu  Archipelago."  (Br.  and  For.  State  Papers,  LXXVI.  58.)  As  to  the 
British  protectorate  over  Amatongaland,  see  For.  Rel,  1895,  I.  721;  over 
Cook's  Island,  For.  Rel.  1889,  485;  and  over  Zanzibar,  For.  Rel.  1890,476. 
As  to  the  S)tanish  protectorate  on  the  west  coast  of  Africa,  between  Western 
Bay  and  Cape  Bajador,  see  For.  Rel.  1885,  769.  For  the  notice  of  France's 
assumption  of  sovereignty  over  the  country  of  the  Ouatchis,  in  Africa,  see 
For.  Rel.,  1885,  389.  As  t(i  I'ortugal's  renunciation  of  her  protectorate 
over  the  coa.st  of  Dahomey,  see  For.  Rel.  1888,  II.  1390.  Notice  was  given 
by  Italy  Aug.  7,  1888,  of  the  establishment  of  a  protectorate  over  Zoula, 
in  Africa.     (For.  Rel.  1888,  II.  1058.) 

As  to  the  recognition  by  Sultan  Osnian  Mahmud  of  an  Italian  i)rotectorate 
over  Somaliland,  see  For.  Rel.  1901,  299. 

''  It  can  not  t)e  irrelevant  to  remark  that  'spheres  of  influence'  and 
the  theory  or  pi-actice  of  the  '  Hinterland  '  idea  are  things  unknown  to 
international  law  and  do  not  as  yet  rest  upon  any  recognized  principles 
of  either  international  or  nmnicipal  law.  They  are  ne\v  departures 
which  certain  great  European  powers  have  found  necessary  and  con- 


§  82.]  ACCRETION.  26y 

venient  in  the  course  of  their  division  umong  themselves  of  great 
tracts  of  the  continent  of  Africa,  and  which  find  their  sanction  solely 
in  their  reciprocal  stipulations.  .  .  .  Whether  the  '  spheres  of  in- 
fluence' and  the  "Hinterland'  doctrines  be  or  be  not  intrinsicail}' 
sound  and  just,  there  can  be  no  pretense  that  they  apply  to  the  Ameri- 
can continents  or  to  any  boundary  disputes  that  now  exist  there  or 
*may  hereafter  arise.  Nor  is  it  to  be  admitted  that,  so  far  as  territo- 
rial disputes  are  likely  to  arise  between  Great  Britain  and  the  United 
States,  the  accepted  principles  of  international  law  arc  not  adequate 
to  their  intellio-ent  and  just  consideration  and  decision.  For  example, 
unless  the  treaties  looking  to  the  harmonious  partition  of  Africa  have 
worked  some  change,  the  occupation  which  is  sufficient  to  give  a  state 
title  to  territory  can  not  be  considered  as  undetermined.  It  must  be 
open,  exclusive,  adverse,  continuous,  and  under  claim  of  right.  It 
need  not  be  actual  in  tho  sense  of  involving  the  posse-'o^io pedis  over  the 
whole  area  claimed.  The  only  possession  required  is  such  as  is  reason- 
able under  all  the  circumstances — in  view  of  the  extent  of  territory 
claimed,  its  nature,  and  the  uses  to  which  it  is  adapted  and  is  put — while 
mere  constructive  occupation  is  kept  within  bounds  by  the  doctrine  of 
contiguity." 

Mr.  Oliiey,  Sec.  of  State,  to  Sir  Julian  Pauncefote,  British  ambassador,  June 
22,  1896,  For.  Rel.  1896,  232,  235. 

2.  Accretion. 

§82. 

"When  the  ship  was  brought  into  this  coimtiy  a  claim  was  given 
of  a  grave  nature,  alleging  a  violation  of  tlie  tei'ritory  of  the  ITnited 
States  of  America.  .  .  .  The  captui'e  was  made,  it  seems,  at  the 
mouth  of  the  Mississippi  River,  and,  as  it  is  contended  in  the  claim, 
within  th(?  boundaries  of  the  United  States.  We  all  know  that  the 
rule  of  law  on  this  su])ject  is  'terra?  dominium  tinitur,  ubi  tinitur 
armorum  vis,'  and  since  the  introduction  of  firearms  that  distance  has 
usually  been  recognized  to  })e  about  three  miles  from  the  shore.  But 
it  so  happens  in  this  case  that  a  question  arises  as  to  what  is  to  be 
deemed  the  shore,  since  there  are  a  nimiber  of  little  nuid  islands  com- 
posed of  earth  and  trees  drifted  down  ])y  the  river,  which  form  a  kind 
of  portico  to  the  mainland.  It  is  contended  that  these  are  not  to  be 
considered  as  any  part  of  the  territory  of  America,  that  they  are  a 
sort  of  'no  man's  land,'  not  of  consistency  enough  to  su|)port  the  pur- 
poses of  life,  uninhal)ited,  and  resorted  to  only  for  shooting  and  tak- 
ing birds' nests.  .  .  .  I  am  of  a  different  opinion;  I  think  that  the 
protection  of  territory  is  to  be  reckoned  from  these  islands:  and  that 
they  are  the  natural  appendages  of  th(^  coast  on  which  they  l)order, 
and  from  which  indeed  they  are  formed.     Their  elements  arc  derived 


270  sovereignty:  its  acquisition  and  loss.  [§82. 

iiiimodiatoly  fioni  the  territorv,  and  on  the  principle  of  alluvium  and 
incienieiit.  on  which  so  much  is  found  in  the  books  of  law.  Quod  vis 
H "III! )(!.■<  ih'  t'lo  prmJio  defni.rrrif.  and  rictno  pra'dio  atttderit,  pahm 
tiiiini  I''  ma  net  ^  even  if  it  had  been  carried  over  to  an  adjoining  terri- 
tory. .  .  .  Whether  they  arc  composed  of  earth  or  solid  rock  will 
not  vuiv  the  right  of  dominion,  for  the  right  of  dominion  does  not 
depend  u[)on  the  texture  of  the  soil.*' 

Sir  \V.  Scott,  The  Anna  (ISOo),  T^  C.  Rob.  373. 

A.s;  tn  land  submerged  by  the  grachial  advance  of  tlie  sea,  see  Wil.son  r.  Shiveley, 
11  Oregtin,  'l\'y,  and,  a.s  to  land  regained  by  recession  of  the  sea,  see(^)cean 
City  Assc.c.  r.  Shriver  (N.  J.  19(X)),46  Atl.  Rep.  690;  Mulry  r.  Norton,  100 
N.  Y.  424,  .=).]  Am.  Rep.  206;  Wallace  v.  Driver,  61  Ark.  429. 

That  title  by  accreti<^n  applies  to  gradual  increase  by  wrongful  deposit  by 
human  hands  was  asserted  in  Steers  r.  Brooklyn,  101  N.  Y'.  51. 

In  ls.)i  a  fractional  stn-tion  of  land  in  Iowa  was  surveyed  by  United 
Stiites  surveyors  and  a  ])art  thereof  designated  as  lot  4  containing 
37.1^4  acres,  the  northern  lH)iuidarv  being  the  Missouri  River.  In  1853 
the  lot  was  entered  and  paid  for,  and  a  patent  was  obtained  for  it  in 
185;").  Between  that  time  and  1888  it  was  subject  to  ten  conveyances, 
and  in  each  case  it  was  descril)ed  as  lot  4.  About  18.53  new  land  l)egan 
to  form  along  the  whole  of  the  river  line,  and  the  increase  continued 
until  1870.  when  it  amounted  to  about  forty  acres,  which  continued  to 
be  a  part  of  the  lot.  The  new  land  was  formed  by  the  operation  of  the 
current  and  waters  of  the  river  washing  and  depositing  earth,  sand, 
and  other  material  upon  the  lot.  while  the  waters  and  current  of  the 
river  receded  so  that  the  new  land  became  high  and  dry  above  the 
usual  high- water  mark,  the  river  making  for  itself  a  main  course  far 
north  of  th*'  original  meander  line.  This  process,  begun  in  1853  and 
continued  imtil  1870,  went  on  so  slowly  tliat  it  could  not  be  observed 
in  its  progress;  but.  at  intervals  of  less  than  three  or  four  months,  it 
could  be  seen  by  the  eye  that  additions  greater  or  less  had' been  made 
to  the  shore.  ITehl,  that,  under  the  conveyances  above  referred  to, 
in  whi(  h  no  interest  of  any  kind  was  reserved,  the  accretions  passed 
with  the  lot  as  part  thereof,  and  that  it  was  properly  alleged  that  the 
new  l:ind  was  formed  "by  imperceptible  degrees,"  and  that  the  gen- 
ei'al  law  of  accretion,  which  had  been  held  to  be  applical)le  to  tlie 
Mississippi  Kiver.  was  also  applicable  to  the  Missouri  River,  although 
the  chatigt's  in  the  latter  wer(»  greater  and  more  rapid  than  in  the 
t'ornior.  the  diti'erence  not  being  so  great  as  to  render  the  law  of  accre- 
tion inapplicable.  The  court  cited  County  of  St.  Clair  r.  Lovingston, 
1^3  ^\  all.  4t).  to  the  etiect  that  "'alluvion  meant  the  addition  to  riparian 
land,  gradually  and  imperceptibly  made,  through  causes  either  nat- 
ural or  artificial,  by  the  watei*  to  whi<h  the  land  was  contiguous;  that 
the  test  of  what  was  gradual  and  imperceptible  was  that,  although 
the  witnesses  might  see  from  time  to  time  that  progress  had  been 


§  82.]  ACCRETION.  271 

made,  they  could  not  perceive  it  while  tlic  process  was  goin^'  on.  and 
that  it  was  alluvion  whether  the  addition  was  made  on  a  stream  which 
overflowed  its  banks  or  on  one  wdiich  did  not." 

Jefferis  r.  East  Omaha  Land  Co.  (1890),  V.U  V .  S.  17S,  1!)1,  citiu-x  .Tout's  r. 
Houlanl,  24  Howanj,  41 ;  Saulet  >:  Shepherd,  4  Wiillace,  502;  County  of 
St.  Clair  r.  Lovingston,  28  Wallace,  4(5;  Institutes  of  Gains,  Book  11.  sec.  70; 
and  various  J-inglish  cases. 

Title  by  accretion  may  be  maintain(Kl  in  respect  of  an  island  or  dry 

land  J4"radually  formed  upon  that  part  of  the  bed  of  a  river  which  is 

owned  in  fee  l)v  tlie  riparian  proprietor,  who  in  such  case  retains  title 

')  the  land  previously  owned  by  him  together  with  the  new  deposit 

creon. 

But  the  formation  of  a  bar  at  the  foot  of  an  island  in  a  river  by  the 
transfer  of  a  quarter  of  a  mile  of  land  in  a  single  night  does  not  con- 
fer a  title  by  accretion;  nor  can  the  right  of  accretion  to  an  island  in 
a  river  be  so  extended  lengthwise  of  the  stream  as  to  exclude  riparian 
proprietors  as  such,  above  or  below  the  island,  from  access  to  the 
river. 

St.  Louis  r.  Rutz  (1891),  138  V.  S.  226,  24.5,  2.50,  251. 

To  a  moval)le  island,  traveling  for  more  than  a  mile  and  from  one 
State  to  another,  title  by  accretion  does  not  arise,  since  its  progress  is 
not  imperceptible  in  the  legal  sense. 

St.  Louis  r.  Rutz  (1891 ),  138  U.  S.  226,  251. 

This  decision  related  to  Arsenal  Island,  the  subject  of  the  case  of  Carrick  r. 
Lamar,  116  C  S.  423,  in  which  the  island  was  descril)ed  as  "a  men'  mov- 
ing mass  of  alluvial  dei)Osits."  See,  further,  as  to  islands  formed  in  navi- 
gable waters.  Cox  r.  .\rnold,  129  Mo.  337;  .Mid^aine  r.  Johnson,  1.55  ^lo. 
191,  55  S.  W.  1031;  Moore  r.  Farmer,  156  >Io.  .33,  .56  S.  \V.  493;  Perkins  r. 
Adams,  33  S.  W.  778;  Tracy  '•.  Railroad  Co.,  .39  Comi.  3S2;  Railroad  r. 
Schurmeir,  7  Wall.  272. 

By  the  act  of  August  4,  184«),  i>  Stats,  at  L.  5:2,  the  western  boiuid- 
ary  of  Iowa  was  declared  to  ])e  ''the  middle  of  the  main  channel  of  the 
Missouri  Kiver;"'  ])y  the  act  of  April  I'.>.  lS(i4.  the  eastern  boundary  of 
Nebraska  was  declared  to  be  the  same  chaimel.  or,  in  the  words  of  the 
statute,  "the  middle  of  the  channel  of  said  Missouri  Hixcr."  (lo 
Stats,  at  L.  47.)  l^etween  1851  and  ISTT  there  occui-red  in  the  course 
of  the  channel  various  changes,  in  consecjuence  of  which  (he  Stati>  of 
Nebraska  tiled  an  original  bill  in  the  Supreme  C'oui't  of  (iu'  rnited 
States  against  the  State  of  Iowa  for  the  pui'pose  of  h:i\  ing  the  ({ues- 
tion,  as  to  the  effect  of  these  changes  on  the  common  l)oiuKiarv. 
determined. 

I'lu^  court,  Brewer,  J.,  delivering  th(>  opinion,  observed  that  it  was 
".settled  \'d\\\  that  when  grants  of  land  border  on  running  water,  and 
the  banks  are  changed  by  that  gradual  process  known  as  accretion,  the 


272  SOVEREIGIf TY :    ITS    ACQUISITION    AND    LOSS.  [§82. 

riparian  owner's  bouudarv  line  still  remains  the  stream,  although,  dur- 
ing the  years,  by  this  accretion,  the  actual  area  of  his  possessions  may 
vary"  (New  Orleans  r.  United  States,  lo  Pet.  <)<)2,  717;  Jones  v.  Sou- 
lard,  24  How.  41;  Banks  r.  Ogden,  2  Wall.  57;  Saulet  ?.-.  Shepherd,  4 
Wall.  5U2;  St.  Clair  County  /•.  Lovingston,  28  NVall.  46;  Jefferis  /'. 
East  Omaha  Land  Co.,  134  U.  S.  178),  and  that  it  was  "equally  well 
settled,  that  where  a  stream,  which  is  a  boundary,  from  any  cause  sud- 
denly abandons  its  old  and  seeks  a  new  Ijed,  such  change  of  channel 
[which  is  termed  in  law  'avulsion']  works  no  change  of  boundary," 
the  boundary  remaining  as  it  was,  *'  in  the  center  of  the  old  channel, 
although  no  water  may  be  Rowing  therein"  (Gould  on  Waters,  §  159; 
2  HI.  Com.  2«'>2;  Angell  on  Water  Courses,  §  60:  Trustees  of  Hopkins' 
Academy  /•.  Dickinson.  1>  Cush.  544;  Buttenuth  /•.  St.  Louis  Bridge  Co., 
123  Illinois,  535:  Hagan  /•.  Campbell,  8  Porter  (Ala.).  0;  Murry  v.  Ser- 
mon. 1  Hawks  (N.  C),  56);  and  that  these  propositions  were  "univer- 
sally recognized  .  .  .  where  the  boundaries  between  States  or  nations 
are.  by  prescription  or  treaty,  found  in  ruiming  water"  (quoting,  at 
great  length,  the  opinion  of  Attorney-Cxeneral  Cushing.  8  Op.  175. 176). 

It  was  contended,  however,  that  the  law  of  accretion  was  not  appli- 
cable to  the  Missouri  River. 

The  court  replied  that  the  contrary  had  already  ])een  decided,  in  a  ques- 
tion l)etweeii  individuals,  touching  claims  in  the  ver}'  place  in  contro- 
versy, in  Jeti'eris  v.  Land  Company,  134  U.  S.  178.  189,  and  that  this 
decision  applied  to  the  pending  case.  *'  The  Missouri  Kiver."  said  the 
court,  '"is  a  winding  stream,  coursing  thi'ough  a  valley  of  varying 
width,  the  substratum  of  whose  soil,  a  deposit  of  distant  centuries,  is 
largely  of  quicksand.  .  .  .  The  current  is  rapid,  far  above  the 
average  of  ordinary  rivers;  and  by  reason  of  the  snows  in  the  moun- 
tains there  are  two  well-known  rises  in  the  volume  of  its  waters, 
known  as  the  April  and  June  rises.  The  large  volume  of  water  pour- 
ing down  at  the  time  of  these  rises  .  .  .  has  great  and  rapid 
action  upon  the  loose  soil  of  its  banks.  .  .  .  Frequenth^  . 
the  washing  out  of  the  underlying  sand  causes  an  instantaneous  fall  of 
quite  a  length  and  breadth  of  the  sui)erstratum  of  soil  into  the  river: 
so  that  it  may,  in  one  sense  of  the  term,  be  said  that  the  diminution  of 
th(^  banks  is  not  gradual  and  impeiveptible.  but  sudden  and  visible. 
Notwithstanding  this,  two  things  nuist  be  borne  in  mind, 
that,  while  there  may  l)e  an  instantaneous  and  obvious  dropping  into 
the  river  of  quite  a  portion  of  its  banks,  such  portion  is  not  carried 
down  the  stream  in  a  solid  and  compact  mass,  but  disintegrates  and 
separates  into  particles  of  earth  borne  onward  by  the  flowing  water, 
and  giving  to  the  stream  that  color  which  .  .  .  has  made  it 
known  as  the  'muddy'  Missouri;  and.  also,  that  Avhile  the  disappear- 
ance, l)y  reason  of  this  process,  of  a  mass  of  bank  may  be  sudden  and 


§  82.]  CESSION.  278 

obvious,  there  is  no  transfer  of  sucli  a  solid  })ody  of  earth  to  the  oppo- 
site shore,  or  anything  like  an  instantaneous  and  visible  creation  of  a 
bank  on  that  shore.  The  accretion,  whatever  may  be  the  fact  in 
respect  to  the  diminution,  is  always  gradual  and  by  the  imperceptible 
deposit  of  floating  particles  of  earth.  ,  .  .  There  is  no  heaping 
up  at  an  instant,  and  while  the  e^^e  rests  upon  the  stream,  of  acres  or 
rods  on  the  forming  side  of  the  rivei-.  No  engineering  skill  is  sufticient 
to  say  where  the  earth  in  the  bank  washed  away  and  disintegrating 
into  the  river  finds  its  rest  and  abiding  place.  .  .  .  The  only 
thing  which  distinguishes  this  river  from  other  streams,  in  the  matter 
of  accretion,  is  in  the  rapidity  of  the  change  caused  by  the  velocity  of 
the  current;  and  this  in  itself,  in  the  very  nature  of  things,  works  no 
change  in  the  principle  underlying  the  rule  of  law  in  respect  thereto. 
The  boundary,  therefore,  between  Iowa  and  Nebraska  is  a 
varying  line,  so  far  as  affected  by  these  changes  of  diminution  and 
accretion  in  the  mere  washing  of  the  waters  of  the  stream. 

"It  appears,  however,  from  the  testimon}',  that  in  1877  the  river 
above  Omaha,  which  had  pursued  a  course  in  the  nature  of  an  ox-bow, 
sudden  1}'  cut  through  the  neck  of  the  bow  and  made  for  itself  a  new 
channel.  This  does  not  come  within  the  law  of  accretion,  but  of  that 
of  avulsion.  B}'  this  selection  of  a  new  channel  the  boundary  was 
not  changed,  and  it  remained  as  it  was  prior  to  the  avulsion,  the 
center  of  the  old  channel;  and  that,  unless  the  waters  of  the  river 
returned  to  their  former  bed,  became  a  fixed  and  unvarying  boundary, 
no  matter  what  might  be  the  changes  of  the  river  in  its  new  channel." 

Nebraska  r.  Iowa  (1892),  143  U.  S.  359,  368.  The  court,  besides  quoting'  the 
opinion  of  Attorney-General  Gushing,  quoted  Vattel,  Book  1,  ch.  22, 
§§  268,  269,  270. 

3.  Cession. 

The  effects  of  a  cession  of  territory  are  determined  by  the  instru- 
ment by  which  it  is  made,  and  by  such  principles  of  international  and 
constitutional  law  as  may  be  applicable  to  the  case. 

The  effect  of  the  transfer  of  sovereignty  on  the  national  status  of 
the  inhabitants  of  the  ceded  territory  is  discussed  in  the  chapter  on 
nationality. 

The  effect  of  a  change  of  sovereignty  on  treaty  relations  is  discussed 
in  the  chapter  on  treaties. 

"The  Constitution  confers  absolutely  on  the  Government  of  the 
Union  the  power  of  making  war  and  of  making  treaties:  consequently, 
that  Government  possesses  the  power  of  acquiring  tei-ritoiy.  either  by 
conquest  or  by  treaty." 

Marsliail,  C.  .T.,  American  Insurance  Co.  v.  Canter  (1828),  1  Peters,  511. 
H.  Doc.  551 18 


274  suvekeignty:  its  acquisition  and  loss.      [§§83-84. 

(1)    CONSENT    OF   THK    POPILATION. 

"The  principle  that  the  wisht's  of  a  popuhition  are  to  he  eon.sulted 
when  the  territory  whicii  they  inhabit  is  ceded  has  not  been  adopted 
into  international  law.  and  can  not  l)e  adopted  into  it  until  title  by 
conquest  has  disappeared."' 

Hall,  Int.  l^iw,  4tli  ed.  49.     See  this  author'.^*  discussion  r)f  the  (luestion,  id. 
48-o0. 

''Before  ])assinof  in  review  the  objections  which  you.  under  instruc- 
tions from  Count  Okiuua.  renew  to  the  propo.sed  annexation  [of  the 
Hawaiian  Islands  to  the  United  States],  I  desire  to  notice  a  declaration 
in  the  opening  of  your  note  which  can  not  be  passed  over  in  silence. 
In  referrino-  to  the  .sentiments  of  the  population  of  Hawaii,  you  .say: 
'It  is  und(Mstood  that  onlv  a  .small  fraction  of  their  number  favor 
annexation.*  You  omit  to  state  how  this  understandint^  has  been 
ascertained,  nor  is  it  clear  what  is  the  purpo.se  for  which  the  statement 
is  introduced. 

•'  It  can  not  be  that  one  so  well  informed  in  tlie  hi.story  of  inter- 
national relations  as  Count  Okumu  could  liave  wished  to  suggest  th(M'e)>y 
the  ])ix)priety  of  appealing  from  the  action  of  the  (Jovernnient  to  'the 
popidation.'  In  international  comity  and  ])ractice  th(>  will  of  a  nation 
is  -ascertained  through  the  established  and  recognized  government,  and 
it  is  only  through  it  that  the  nation  can  .speak.  This  is  shown  in  the 
relations  of  the  United  States  with  Japan.  The  first  intercourse  of 
this  (rovernment  with  the  Empire  was  had.  with  an  authority  which 
held  a  divided,  if  not  disi)uted.  sovereignty.  Latei",  when  all  power 
and  legislation  was  centered  in  the  Emperor,  this  (iovernment  recog- 
nized him  as  the  sole  exponent  of  the  public  will.  When  parliaiiientary 
government  was  established  the  changed  relation  was  accepted  by  the 
United  States.  No  in(|uiry  was  thought  proper  to  ascertain  whether 
the.se  various  changes  received  the  .sanction  of  'the  popidation.'  The 
])resent  (Tovernment  of  the  Hawaiian  Islaiids,  recognized  ])v  Japan 
and  other  countiies.  has  l)een  in  existence  for  a  series  of  years,  during 
which  tinu>  public  peace  and  social  order  have  been  maintained,  and 
the  coimtry  has  enjoyed  an  era  of  unj)recedented  prosperity.  The 
Utovernment  of  the  United  States  sees  no  rea.son  to  question  its  com- 
plete sovereignty,  or  its  i-ight  to  express  the  national  will.*' 

Mr.  ShiTiiiaii,  Sec  of  State,  to  Mr.  Torn  llosiii,  Jap.  luiii.,  Aug.  14,  1897,  MS. 
Notes  to  .Ia{).  Le<r.  I.  -^liS,  oH-"). 

(  L' t    IKoTKCrioN    I>1-     i  KHKITOH"!      I'KNDI  N"( ;     A  NNKXATION. 
Jj    84. 

•'  In  answci-  to  the  resolution  of  the  Senate  of  the  13th  instant 
re(iuesting  to  t)c  informed 'whether,  since  the  commencement  of  the 


§  84r.]  CESSION.  275 

nej^otiations  which  resulted  in  the  treaty  now  Ix^fore  the  Senate'  f(jr 
the  annexation  of  Texas  to  the  United  States,  any  military  ])reparation 
has  been  made  or  ordered  by  the  President  for  or  in  aiiti(i})ati<)n  of 
war,  and,  if  so,  for  what  cause,  and  with  whom  was  such  war  a})i)re- 
hended,  and  what  are  the  preparations  that  have  Itcen  niadc  or  ordered; 
has  any  movement  or  assembhige  or  disposition  of  any  of  tiie  military 
or  naval  forces  of  the  United  States  l)een  made  or  ordered  with  a  view 
to  such  hostilities;  and  to  communicate  to  the  Senate  co})ies  of  all 
orders  or  directions  g-iven  for  any  such  preparation  or  for  any  such 
movement  or  disposition  or  for  the  future  con(hict  of  such  military  or 
naval  forces.*  I  have  to  inform  the  Senate  that,  in  consequence  of  the 
declaration  of  Mexico  communicated  to  this  Government  and  In'  me 
laid  before  Congress  at  the  opening  of  its  present  session,  announciiig 
the  determination  of  Mexico  to  regard  as  a  declaratioti  of  war  against 
her  by  the  United  States  the  definitive  i-atification  .of  any  treaty  with 
Texas  annexing  the  territory  of  that  Republic  to  the  Ui^ited  States, 
and  the  hope  and  belief  entertained  by  the  Executive  that  the  treaty 
with  Texas  for  that  purpose  wovild  be  specnlily  approved  and  ratified 
by  the  Senate,  it  was  regarded  by  the  Executive  to  have  })ecome 
emphatically  its  duty  to  concentrate  in  the  Gulf  of  Mexico  and  its 
vicinity,  as  a  precautionary  measui'e,  as  large  a  portion  of  the  hom(> 
squadron,  under  the  command  of  Gaptain  Conner,  as  could  well  be 
drawn  together,  and  at  the  same  time  to  assem})le  at  Fort  Jesup,  on 
the  borders  of  Texas,  as  large  a  military  force  as  the  demands  of  the 
service  at  other  encampments  Avould  authorize  to  be  detached.  For 
the  num])er  of  ships  already  in  the  Gulf  and  the  waters  contiguous 
thereto  and  such  as  are  placed  under  orders  for  that  destination,  and 
of  troops  now  assembled  upon  the  frontier.  1  refer  you  to  the  accom- 
panying reports  from  the  Secretaries  of  the  War  and  Navy  Depart- 
ments. It  will  also  be  perceived  ])y  the  Senate,  by  referring  to  the 
orders  of  the  Navy  Department  which  are  herewith  transmitted,  that 
the  naval  ofticer  in  conmiand  of  the  fleet  is  directed  to  cause  his  ships 
to  perform  all  the  duties  of  a  fleet  of  oliservation  and  to  apprise  the 
Executive  of  an^^  indication  of  a  hostile  design  upon  Texas  on  the 
part  of  any  nation  pending  the  deliberations  of  the  Senate  nyxm  the 
treaty,  with  a  view  that  the  sam(>  should  promptly  ])e  submitted  to 
Congress  for  its  mature  deliberation.  At  the  same  time  it  is  due  to 
mvself  that  I  should  declare  it  as  my  opinion  that  the  I'nited  States 
having  by  the  treaty  of  annexation  acquired  a  title  to  Texas  which 
recpiires  only  the  action  of  the  Senate  to  perfect  it,  no  other  power 
could  be  permitted  to  invade  and  V)y  force  of  arms  to  possess  itself  of 
any  portion  of  the  territory  of  Texas  pending  your  deliberations  upon 
the  treaty  without  placing  itself  in  a  hostile  attitude  to  the  Uiiited 
States  and  justifying  the  employment  of  any  military  means  at  our 
disposal  to  drive  back  the  invasion.  At  the  same  time,  it  is  my  opin- 
ion that  Mexico  or  any  other  power  w^ll  find  in  your  approval  of  the 


276  sovereignty:  its  acquisition  and  loss.  [§84. 

treaty  no  just  cause  of  war  against  the  United  States,  nor  do  I  believe 
that  there  is  any  serious  hazard  of  war  to  })e  found  in  the  fad  of  such 
apj)roval.  Nevertheless,  every  proper  measure  will  be  resorted  to  by 
the  Executive  to  preserve  upon  an  honorable  and  just  basis  the  public 
peace  by  reconciling-  Mexico,  through  a  liberal  course  of  policy,  to  the 
treaty." 

I*resi(lent  Tyler,  special  mft«sage  of  May  15,  1844,  S.  Doc.  341,  28  Cong.  1  sess. 
74-Sl.  Both  the  message  and  the  acroinpanying  papers  are  given  in  the 
(locnnient  here  cited.  Tlie  message  itself  may  be  found  in  Richardson, 
^Fessages  and  Paper:3  of  tlie  Presidents,  IV.  316. 

See  Benton's  Thirty  Years'  View,  II.  642,  643;  Cong,  (ilobe,  42  Cong.  1  sess. 
(1871 ),  part  1,  p.  294  et  seq. 

The  treaty  of  annexation,  which  was  signed  at  "Washington  April  12,  1844, 
was  rejected  by  the  Senate.  This  was  followed  by  the  adoption  by  Con- 
gress of  the  joint  resolution  of  iNIarch  1,  1845,  looking  to  the  admission  of 
Texa-s  as  a  State  into  the  Union,  an  end  consummated  by  the  joint  resolu- 
tion of  Dec,  29,  1845.      (Infra,  §.  103. ) 

In  I'onnection  with  President  Tyler's  message,  supra,  it  may  be  stated  that  on 
January  17,  1844,  Mr.  A'an  Zandt,  charge  d'affaires  of  Texas,  inquired  of 
]Mr.  I'pshur,  then  Secretary  of  State  of  the  United  States,  whether,  if  a 
treaty  for  the  annexation  of  Texas  to  the  United  States  should  be  signed, 
the  President  of  the  United  States  would,  pending  its  ratification,  give  to 
Texas,  if  the  latter  should  desire  it,  the  protection  of  the  military  and 
naval  forces  of  the  United  States.  Mr.  Van  Zandt  referred  to  the  fact 
tliat  an  armistice  had  been  proclaimed  between  Mexico  and  Texas  and 
suggested  the  possi))ility  of  its  termination  l)y  Mexico,  should  a  treaty  of 
annexation  to  the  United  States  l)e  concluded. 

No  answer  was  made  to  this  inquiry  by  ^Ir.  I'pshur;  l)ut  it  appears  that,  in 
response  to  a  similar  inquiry,  assurances  such  as  were  desired  were  imme- 
diately given  by  Mr.  Murphy,  United  States  charge  d'affaires  in  Texas,  to 
the  Government  of  that  Republic  on  his  own  responsibility.  Mr.  Murphy 
also  sent  a  secret  "order"  to  Lieutenant  Davis,  U.  S.  S.  Flirt,  to  advise 
any  United  States  vessels  of  war  which  he  might  fall  in  with  that  they 
]irobably  would  soon  be  directcni  to  assemble  in  the  Gulf  of  Mexico,  and 
to  prevent  any  invasion  of  the  Texan  coast  which  might  be  meditated  by 
^lexico  or  by  any  power  giving  her  aid. 

March  1 1,  1844,  Mr.  Nelson,  Avho,  on  tlie  death  of  Mr.  Upshur,  was  acting  as 
Secretary  f)f  States  ad  interim,  informed  Mr.  Murphy  that  the  President  jier- 
ceived  wdth  regret  tliat  he  had  given  pledges  which  were  beyond  the  line  of 
his  instnictions  ami  which  committe<l  the  President  to  measures  for  which 
he  had  no  constitutional  autliority  to  stipulate.  The  employment  of  the 
Army  or  Navy  against  a  fon^gn  power  with  which  the  United  States  was  at 
I)eace,  said  ^Ir.  Nelson,  '"is  not  within  the  competency  of  the  President; 
and  whilst  he  is  not  indisj)osed,  as  a  measure  of  jirudent  precaution,  and 
as  ]>reliminary  to  the  proposed  negotiation,  to  concentrate  in  the  (iulf  of 
Mexico,  and  on  tlie  southern  borders  of  the  United  States,  a  naval  and 
military  force  to  be  directed  to  tiie  defense  of  the  inhalntants  and  terri- 
tory of  Texas  at  a  ])roper  time,  he  can  not  i)ermit  the  authorities  of  that 
Government  or  yourself  to  labor  imder  the  misai^prehension  that  he  has 
power  to  employ  them  at  the  })eriod  indicated  l)y  yotir  stipulations  .  .  . 
In  any  emergency  that  may  occur,  care  will  be  taken  that  the  commanders 
of  the  naval  and  military  forces  of  the  I'uited  States  shall  be  properly 


§  84.]  CESSION.  277 

instructed  .  .  .  lam  happy,  however,  to  believe  tliat  no  exigency,  re<|  Hir- 
ing the  use  of  force,  by  the  United  States,  againi^t  Mexico  or  any  other 
power,  is  likely  to  result  from  the  negotiation  with  Texas."  .Mr.  Murphy 
was  directed  to  countermand  his  instructions  to  Lieutenant  Davis  so  far  a.-^ 
they  conflicted  with  these  views. 
Subsequently,  on  April  11,  1844,  :Mr.  Calhoun,  who  had  then  become  Secre- 
tary of  State,  replie<l  to  Mr.  Van  Zandt's  note  of  the  17th  of  January,  as 
follows:  "  I  am  directed  by  the  President  to  say  that  the  Secretary  of  the 
Navy  has  been  instructed  to  order  a  strong  naval  force  to  concentrate  In 
the  Gulf  of  Mexico,  to  meet  any  emergency;  and  that  similar  orders  have 
been  issued  by  the  Secretary  of  War  to  move  the  disposable  military  forces 
on  our  southwestern  frontier  for  the  same  purpose.  Should  the  exigency 
arise  to  which  you  refer  in  your  note  to  Mr.  Upshur,  I  am  further  directed 
by  the  President  to  say  that,  during  the  jiendency  of  the  treaty  of  annex- 
ation, he  would  deem  it  his  duty  to  use  all  the  means  placed  within  his 
power  l)y  the  Constitution  to  protect  Texas  from  all  foreign  inva.«ion." 
(S.  Doc.  349,  28th  Cong.  1st  sess.  11.) 

"In  regard  to  the  orders  which  have  been  heretofore  given  to  the 
officers  in  command  of  the  military  and  naval  force  of  the  U^iited 
States  in  the  Gulf  of  Mexico  and  on  the  frontiers  of  Texas,  yon  ma}' 
assure  the  (rovernmcnt  of  Texas  that  there  will  l)e  no  material  change, 
except  that  the  communications  made  to  it  by  the  officer  commanding 
the  military  as  well  as  the  naval  force,  will  be  made  through  the 
eharg«'  d'affaires  of  the  United  States." 

Mr.  Calhoun,  Sec.  of  State,  t(j  ^Ir.  Howard,  charge  d'affaires  to  Texas,  June 
18,  1844,  MS.  Inst.  Texas,  I.  100. 

The  Mexican  minister  at  Washington  having  protested,  in  the  name 
of  his  Government,  against  the  joint  resolution  of  March  1,  1845.  for 
the  annexation  of  Texas,  as  a  violation  of  the  rights  of  Mexico,  and 
having  in  conse([uence  of  it  demanded  Ids  passports,  ''ho  was  informed 
that  the  Government  of  the  United  States  did  not  consider  this  joint 
resolution  as  a  violation  of  any  of  the  rights  of  Mexico,  or  that  it 
afforded  any  just  caiise  of  offense  to  his  Government;  that  the 
Republic  of  Texas  was  an  independent  power,  owing  no  allegiance  to 
Mexico,  and  constituting  no  part  of  her  territory  or  rightful  sover- 
eignty and  jurisdiction."  Diplomatic  intercourse  was,  however,  sus- 
pended by  the  Mexican  (foverjunent  both  at  the  City  of  ]\Iexico  and 
at  Washington. 

■"Since  that  time  Mexico  has.  until  recently,  occu})ied  an  attitude  of 
hostility  towai'd  the  United  States  has  been  marshaling  and  organ- 
izing armies,  issuing  proclamations,  and  avowing  the  intention  to 
make  war  on  the  United  States,  either  by  an  open  deciaiation,  or  by 
invading  Texas.  Both  the  congress  and  com  (Mitioii  of  tiie  p('oi)le  of 
Texas  invited  this  Government  to  send  an  army  into  tliat  territory,  to 
protect  and  defend  them  against  th(>  menaced  attack.  Tiie  moment 
the  terms  of  annexation  offered  bv  the  l^'nited  States  were  accepted 


278  sovereignty:  its  acquisition  and  loss.  [p  8-i. 

I)v  lexas.  the  hitter  became  so  far  a  part  of  our  own  country  as  to 
make  it  our  duty  to  afford  such  proti'ction  and  defense.  1  therefore 
deemed  it  proper,  as  a  precautionary  measure,  to  order  a  strong 
s<{uadron  to  the  coasts  of  ]\I«'xico.  and  to  concentnite  an  etiicient 
military  force  on  the  western  frontier  of  rexas."' 

I'lfsidi'iit  I'olk,  lirst  tiniuial  inestJa^*',  Dec.  '2,  ]S4a,  S.  Doc.  1,  2i>  Conj;.  1  sei^s.  5. 

July  13,  1801),  the  Secretary  of  the  Navy  wrote  to  Commander 
Owen  that  Gen.  Babcock  was  proceeding-  to  San  Domingo  with  in- 
structions from  the  President.  Commander  Owen  was  directed  to 
"remain  at  Samana.  or  on  the  coast  of  San  Domingo,  while  General 
Babcock  is  there,  and  give  him  the  moral  support  of  your  guns." 

Noveml)cr  0.  1S6!»,  Capt.  Balch  was  instructed  l)y  the  Secretary  of 
the  Navy  to  be  ready  to  receive  on  board  three  officers  ordered  by  the 
President  to  take  passage  to  San  Domingo.  "Gen.  Babcock,"  it  Avas 
added,  "'will  have  certain  orders  from  the  President  of  the  Cnited 
States.  You  are  directed  to  conform  to  all  his  wishes  and  orders,  and 
to  convey  him  to  such  points  as  he  may  desire  to  visit.*'" 

In  Deceml^er,  1S«)1»,  advices  were  received  at  Washington  that  General 
Saget,  the  Haytian  leader  who  had  just  overthrown  the  Government 
of  Salnave.  which  was  friendly  to  the  I'nited  States,  had.  during  the 
pendency  of  the  negotiations  between  the  United  States  and  San 
Domingo,  assisted  Gen.  Cabral,  who  was  then  in  arms  against  the 
Dominican  Government,  with  war  steamers  and  troops. 

The  Haytian  Government  had  been  notified  that  any  military  move- 
ment against  San  Domingo  would  be  considered  as  a  hostile  act  against 
the  Cnited  States.  The  Secretary  of  the  Navy  therefore  instructed 
Admiral  Pool-.  January  2lt,  ISTO,  to  proceed  to  Port  au  Prince  and 
inform  the  Haytian  authorities  that  the  United  States  was  determined 
to  protect  th(^  existing  Dominican  Government  with  all  its  power. 
He  was  then  to  })roceed  to  San  Domingo  and  use  his  force  to  give  the 
most  ample  ■  protection  to  that  Government,  against  any  power 
attempting  to  interfere  with  it.  If  the  Ilaytians  attacked  the  Domini- 
cans with  their  ships,  he  was  to  destroy  or  capture  them.  Instructions 
of  a  similar  Y)urport  were  givcMi  to  other  naval  officers. 

Admiral  Poor  proceeded  to  Port  au  Princt^  and  acquainted  the  gov- 
ermnent  there  with  the  nature  of  his  instructions.  He  learned  after- 
wards, unofficially,  that  the  authorities  were  displeased  at  what  they 
considered  a  menace  on  the  part  of  the  Cnit<'d  States,  accompanied 
with  force. 

On  Mai-ch  8,  l87o.  Admiral  Poor  reported  his  arrival  at  San 
Domingo  City  on  the  oth  of  that  month.     Cabral,  he  said,  seemed  to 

"St'e  infra,  §121,  where  the  purport  of  (ienenil  Babcoi-k's  formal  in.«tructioii.>j  of 
July  anil  Novenil)t'r,  1869,  in  given. 


§  S-i-]  CESSION.  279 

have  nuirle  no  active  movement  .since  the  I'nitcd  States  (Icclartd  its 
intentions  witii  regard  to  San  Dominoo. 

S.  Ex.  Doc.  34,  41  Cong.  3  sess.  6,  iO,  11,  12,  14,  15,  It;.  Ke^olutioii.<  offered 
in  the  Senate  by  Mr.  Sumner,  CDndenumtory  of  the  orders  iriveii  to  tlie 
Navy  in  this  instance,  as  involving  an  unlawful  assumption  l.v  the  Presi- 
dent of  the  war-making  power,  were  laid  on  the  tahlc,  Muicli  L".»,  ls7l.  l,y 
a  vote  of  .39  to  16.  (Cong.  Globe,  42  Cong.  1  sess.  ( 1S71 ),  j.arl  1,  pp.  2;>2, 
250,  294,  .305,  et  seq. ;  also,  Appendix,  pp.  51  ct  seq.) 

"Negotiations  are  pending  })et\veen  the  United  States  and  I^residciit 
Baez  of  the  Dominican  Kepii])lic.  relative  to  the  Bay  of  Saniana. 

"It  has  come  to  the  knowledge  of  this  Department  that  in  case  of 
the  overthrow  of  the  government  of  President  Sainave  in  Ilavti.  tlio.se 
who  may  succeed  liim  may  possil)ly  be  disposed  to  interfere  with  the 
internal  peace  of  the  Dominican  Kepul)lic.  This  (xovernment  will  look 
with  disfavor  upon  any  such  attempt,  and  you  will  not  fail  to  make 
that  clear  to  any  government  that  may  exist  in  llayti.  You  will  also, 
in  case  it  comes  to  your  kiwwledge  that  any  atteiupts  are  to  l»e  made 
from  llayti  or  elsewhere  to  interfere  with  the  domestii-  peace  of 
Dominica  pending  these  negotiations,  without  delay  couununicate  your 
information  to  the  nearest  officer  in  command  of  a  vessel  of  war  of  the 
United  States  and  to  this  Department.  And  you  will  at  all  times  and  in 
every  wa}'  in  your  power,  discourage  any  such  attempts." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bassett,  min.  to  llayti,  Dec.  22,  LS69,  .MS. 
Inst.  Hayti,  I.  172. 

"Representations  have  been  made  to  this  Go\'ernment  l)y  that  of 
the  Dominican  Re})u))lic,  that  the  Government  of  llayti  is  i-oustantly 
putting  in  jeoi)ardy  the  tranquillity  of  that  Republic  l)y  coiuiIn  ing  at 
the  organization  of  factions  in  Hayti  and  by  furnishing  war  materials 
to  Dominican  insurgents.  It  is  also  I'epresentcd  that  this  is  done 
despite  professions  of  strict  neutrality  on  the  part  of  the  Ilaylian 
Government. 

"It  is  presumed  that  that  Government  must  be  aware  that,  at  this 
juncture  especially,  the  Govei-imient  of  the  I'nited  States  is  peculiarly 
interested  in  the  exemption  of  the  Dominican  Rei)ublic  both  from 
internal  connnotions  and  from  invasions  from  abroad.  If.  therefore, 
there  should  be  any  just  foundation  for  the  com})laint  of  the  Domini- 
can Government  adverted  to.  this  Govenunent  expects  that  at  lea-t  so 
long  as  the  relations  of  the  United  States  with  tiiat  Kepiiltlic  shall 
continue  to  be  as  intimate  and  as  delicate  as  they  now  aic  the  Ilaytian 
GovernmiMit  will  as  a  proof  of  its  good  will  toward-  us  do  e\ei-y- 
thing  which  may  be  in  its  power  towards  a\(»idiiig  any  cause  foi  such 
complaint. 


280  sovereignty:  its  acquisition  and  loss.  [§  85. 

'■•  You  will  address  a  note  to  this  effect  to  the  Haytian  Minister  for 
Foreign  Affairs." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  BaiJ.«ett,  min.  t..  Hayti.  Nov.  16,  1870,  MS.  Inst. 
Hayti,  I.  197. 

{3)    ylESTION    AS    TO    ANNKX  ATloN     HV     A     NKITKAI     PENDIMi    WAR. 

>j  8.'). 

"As  the  question  mar  arise,  how  far  in  a  state  of  war  one  of  the  par- 
ties can  of  right  CH)nvey  territory  to  a  neutral  power,  and  thereby 
deprive  its  enemy  of  the  chance  of  conquest  incident  to  war,  esjjecially 
when  the  conquest  may  have  been  actually  projected,  it  is  thought 
proper  to  observe  to  you.  1st.  That  in  the  present  case  the  project  of 
peaceable  acquisition  by  the  United  States  originated  prior  to  the  war, 
and  consequently  before  a  project  of  conquest  could  have  e.xisted. 
2d.  That  the  right  of  a  neutral  to  procure  for  itself  by  a  hona  Jide 
tran.saction  property  of  any  sort  from  a  l>elligerent  power  ought  not 
to  be  frustrated  by  the  chance  that  a  rightful  conquest  thereof  might 
thereby  be  precluded.  A  contrary  doctrine  would  sacrifice  the  just 
interests  of  peace  to  the  unreasona)»le  pretensions  of  war.  and  the 
positive  rights  of  one  nation  to  the  possi]>le  rights  of  anoth.r.  A 
restraint  on  the  alienation  of  territory  from  a  nation  at  war  to  a  nation 
at  peace  is  imposed  only  in  cases  where  the  proceeding  might  have  a 
collusive  reference  to  the  existence  of  the  war.  and  might  be  calcu- 
lated to  save  the  property  from  danger.  l)y  placing  it  in  secret  trust, 
to  be  reconveyed  on  the  return  of  peace.  No  objection  of  this  sort 
can  be  made  to  the  acquisitions  we  have  in  view.  The  mea,sures  taken 
on  this  subject  were  taken  before  the  existence  or  the  appearance  of 
war:  and  they  will  be  pursued  as  they  were  planned,  with  the  hotta 
/idt  purix)se  of  vesting  the  acquisition  forever  in  the  United  States." 

Mr.  Madifson,  Sec.  of  State,  to  Messrs.  Livingston  and  Monroe,  plenipoten- 
tiaries to  France,  May  28.  1803,  Am.  State  Pai>ers,  For.  Rel.  IL  562. 

The  di.'icussiun  containe<l  in  the  foregoing  passage,  which  was  written  in  the 
exj>ectation  that  a  final  rupture  of  the  Peace  of  Amiens  would  take  place, 
pending  negotiations  with  France  for  the  cession  of  New  Orleans,  jtroved 
to  be  .ei>eculative,  since  tlie  treaty  celling  I>onisiana  to  the  United  States 
wa."^  conclude^!  more  than  two  weeks  In'fore  tlie  war  l>etween  France  and 
Great  Britain  wa.«  renewetl.  The  treaty  of  ce.«sion  and  the  convention  for 
the  jiaynient  of  »>0,0(X),000  franco  to  France,  were  signed  in  French  May 
2,  1803,  and  in  English  two  or  three  days  later;  the  convention  relating 
to  the  payment  of  American  claims  wa.«  signe<l  on  the  8th  or  9th  of  May, 
but  all  were  anteilated  a^^  of  Ai>ril  30.  (Adam.«'s  History  of  the  Uniteti 
States.  II.  42.1 

See,  :i,s  to  Mexico's  attitude  with  reference  to  Tex;is,  supra,  §  H4;  infra,  §  103. 


§  86.]  CESSION.  281 

(4)    PROPERTY    THAT    PASSES    MY    (  KSSION. 

§  8H. 

By  Art.  II.  of  the  treaty  of  April  30,  I80;i  by  which  France  ceded 
-       ,  T  Louisiana  to  the  United  States,  it  was  declared  that 

Case  of  Louisiana.  .  .  ,      '  ^ 

the  cession  '*  included  the  designated  islands  belonging 
to  Louisiana,  all  pul)lic  lots  and  squares,  vacant  lauds,  and  all  pul)lic 
buildings,  fortifications,  barracks,  and  other  edifices  which  are  not 
private  property.'"  as  well  as  •'the  archives,  papers  and  documents, 
relative  to  the  dominion  and  sovereignty  of  Louisiana  and  its  depend- 
encies." The  province  was  surrendered  to  the  United  States  on 
December  30.  1803,  and  a  record  was  made  of  the  transaction  bv  the 
conmii.ssioners  who  were  concerned  in  it.  The  commissioners  on  the 
part  of  the  United  States  were  William  C.  C.  Claiborne  and  James 
Wilkinson:  the  couunissioneron  the  part  of  France  was  Peter  Clement 
Laussart,  colonial  prefect.  The  proch  cerhal  recited  that  the  commis- 
sioners met  at  the  city  hall,  and  that,  the  full  powers  of  the  commission- 
ers having  been  delivered,  the  French  commissioner  delivered  to  the 
commissioners  of  the  United  States  "the  kej's  of  the  city  of  New 
Orleans,""'  at  the  same  time  declaring  that  he  discharged  "from  their 
oaths  of  tidelitv  to  the  French  Republic  the  citizens  and  inhabitants  of 
Louisiana  who  should  choose  to  remain  under  the  dominion  of  the 
United  States." 

Am.  State  Papers,  For.  Rel.  II.  581-582. 

Mes.srs.  Claiborne  and  Wilkinson  communicated  the  documents  to  'Sir.  Mad- 
ison, Secretary  of  State,  with  a  letter  of  Dec.  20,  1803. 

In  a  letter  of  Dec.  27,  1803,  Messrs.  Clail)orne  and  Wilkinson  enclosed  to  the 
Secretary  of  State  an  "  original  copy  "  of  the  jiroch  rerlxd  of  the  delivery. 
They  said  that  the  •'l)arracks,  magazines,  hospital,  and  publick  store- 
houses" in  the  city  of  New  Orleans  were  still  in  the  occupancy  of  the 
Spanish  authorities;  they  considered  these  buildings  "as  appendages  of 
of  the  military  posts  and  es.sential  to  their  defense.''  "The  public  rec- 
ords, archives,  &c.,  recognized  in  the  treaty  are  not  yet  delivered.  The 
prefect  has  given  us  assurances  that  these  documents  are  now  arranging 
and  will  soon  be  in  a  state  for  delivery.  The  fort  at  Piakemine's  and  the 
blockhouse  at  the  Balize  have  been  taken  possession  of  by  a  detachment 
of  our  troops,  and  mea.sures  will  innne<liately  be  taken  by  (fenl.  Wilk- 
inson to  occupy  the  post  at  Natchitoches  on  the  Red  River."  In  another 
letter  of  March  11,  1804,  they  stati^d  that  the  French  c()mmi.«jsi<)ner  had 
declared  that  "  France  had  expectetl  us  to  take  her  cannon  and  military 
stores,  that  being  disappointed  in  that  expectation,  and  the  vvar  which  is 
now  raging  preventing  their  being  tran.sported  to  the  territories  (jl  France, 
he  should  reserve  a  portion  of  the  public  storehouses  and  magazines  for 
the  preservation  of  the  property  of  France."  They  jn-oposed  "to  receive 
the  cannon  an<l  military  stores  of  France  in  this  city  by  way  of  deposit  and 
to  keep  them  in  safety,  ready  to  V)e  restored  uIhmi  it  might  b  ■  more  con- 
venient to  remove  them  from  the  i)rovincc.  .  .  .  He  still  persi.sts  in  his 
determination  to  reserve  a  portion  of  the  storehouses  and  magazines  for 
the  use  of  France."     ( MSS.  Dei)t.  of  Statcj 


282  sovereignty:  its  acquisition  and  loss.  [§  86. 

Louisiana  was  ceded  to  the  Uuited  States  in  full  sovereit^nty  and  in 
every  respect,  with  all  its  rights  and  appurtenances,  as  it  was  held  by 
the  Repul)lic  of  France  and  as  it  was  received  by  that  Kepublic  from 
Spain. 

New  Ork-ans  r.  United  States,  10  Pet.  662;  Strother  v.  Lucas,  12  Pet.  410. 
Tlie  i'e8.><ion  im-luded  reservations  of  tlie  right  to  use  of  the  soil  for  })ublic  i)ur- 
poses.     (Josephs  r.  United  States,  1  Nott  and  H.  197;  2  id.  586.) 

By  Art.  II.  of  the  treaty  of  February  22,  1819,  Spain  ceded  to 
the  United  States  '"in  Full  i)roperty  and  sovereignty" 
the  territories  known  as  East  and  West  Florida.  The 
cession  was  declared  to  include  ''the  designated  islands  dependent 
on  said  provinces,  all  public  lots  and  squares,  vacant  land,  public 
edifices,  fortitications.  l)arracks,  and  other  buildings,  which  are  not 
private  property,  archives  and  documents,  which  relate  directly  to  the 
property  and  sovereignty  of  said  provinces." 

By  Art.  VII.  of  the  same  treaty  Spain  agreed  to  evacuate  the  ter- 
ritoi'ies  in  question  within  six  months  after  the  exchange  of  the  rati- 
lications.  and  to  give  j)ossession  to  the  commissioners  or  officers  of  the 
United  States  duly  appointed  to  receive  them;  and  it  was  })rovided 
that  the  United  States  shoidd  "' furnish  the  transports  and  escort 
necessary  to  convey  tlie  Spanish  officers  and  troops  and  their  baggage 
from  Havana.'' 

The  royal  order  for  the  delivery  of  the  territories  to  the  United 
States  was  signed  by  the  King  of  Spain  October  24,  1820.  This  order 
recited  the  stipulations  of  the  treaty  which  have  just  been  quoted.  It 
was  addressed  to  the  captain-general  and  governor  of  the  island  of 
Cuba  and  of  the  Floridas." 

March  20,  1821,  President  Monroe  appointed  General  Jackson  to 
*  administer  the  ati'airs  of  the  Floi-idas,  on  their  delivery  to  the  United 
States.  On  the  '2'.M\  of  the  same  month  Mr.  John  Quincy  Adams,  his 
Secretary  of  State,  addressed  a  letter  to  (ieneral  Jackson,  in  which 
he  adverted  to  the  circumstance  that  tlu^  second  article  of  the  treaty, 
while  it  stipidated  tiiat  the  fortitications  should  be  ceded  to  the  United 
States,  made  no  express  mention  of  the  cannon  ]»elonging  to  them. 
B}'  th(>  seventh  article  of  the  treaty,  said  Mr.  Adams,  "the  United 
States  was  to  furnish  the  transports  and  escort  necessary  to  convey 
the  Spanish  oiiicei-s  and  troops  and  their  baggage  to  Havana;  but  no 
mention  was  made  of  th(i  transportation  of  cannon,  nor  was  there  any 
express  arrangement  on  the  part  of  the  United  .States  to  furnish  pro- 
visions to  the  Spanish  officers  and  tro()})s  on  passage.  It  was,"  he 
declared,  '"the  opinion  of  the  President  that  by  a  fair  and  just  con- 
struction of  the  treaty  the  cannon  belonging  to  the  fortifications  were 
to  l)e  considered   as  appendages  to   them,  included   in   the  cession." 


Am.  State  Papers,  l-'or.  Rel.  IV.  702. 


§86.] 


CESSION.  283 


On  the  same  principle  \iv  thoutrht  tliat  piovisions  foi-  tiie  Spanish 
officers  and  troops  should  be  furnished  by  the  I'nited  States,  and 
orders  had  accordingly  been  given  for  them.  If  the  Spanish  com- 
missioners should  claim  the  cannon  in  the  fortifications  lu'cause  thev 
were  not  expressly  named  in  the  article.  (General  Jackson  was  to 
insist  that  the  United  States  was  not  l)ound  to  furnish  tlu;  i)ro\  isions 
and  would  claim  reimbursement  for  them. 

The  question  mticipated  by  Mr.  Adams  actually  arose  in  the  deliv- 
ery of  East  Florida.  The  formal  act  of  cession  was  performed  at  St. 
Aug-ustine,  July  10,  1821.  by  Colonel  Robert  Butler  on  the  part  of  the 
United  States,  and  Colonel  Jose  Coppinger  on  the  part  of  Spain.  The 
documents  relating-  to  the  transaction  were  transniitted  by  Col.  Butler 
to  Mr.  Adams,  July  3().  1821." 

During-  the  discussions  at  St.  Augustine,  the  Spanish  connnissioner 
took  the  g-roundthat  the  ""artillery,  anmumition.  and  ordnance  stores" 
did  not  go  with  the  fortifications  as  part  of  the  cession.  The  word 
fortifications,  he  maintained,  comprehended,  as  his  instructions  advised 
him,  ""solely  the  material  and  inunovable  parts.*"  but  not  the  arms, 
ammunition,  and  ordnance  stores,  which  were  to  ))e  placed  in  the  same 
categ-ory  as  the  cots,  furniture,  and  utensils  used  l)y  the  troops  and  to 
be  taken  aw^ay.  He  added  that  it  was  ""  well  known  that  on  the  deliv- 
ery of  this  province  In'  Great  Britain  to  Spain,  the  former  withdrew 
all  the  above-mentioned  effects  as  Ixnng  the  practice  in  similar  cases 
unless  otherwise  stipulated.'"'' 

The  American  commissioner  replied  that  liis  CTOvernment  laid  no 
claim  to  ""the  anmiunition  and  ordnance  stores.""  Init  considered  the 
artillery  in  the  fortifications  ""was  appendant  to  and  should  remain 
with  them.""  For  this  view  he  also  found  support  both  in  the  order 
of  the  captain-general  of  Cuba,  which  did  not  rcijuire  the  rtMuoval  of 
the  artillery,  and  also  in  the  7th  article  of  the  tre:ity,  which  obliged 
the  United  States  to  ""furnish  the  transports  and  escort  necessary  to 
convey  the  Spanish  officers  and  troops  and  their  l)aggag-e  to  the 
Havana."  Should  the  artillery  be  left  behind,  he  would  engage  to 
furnish  a  reasonabl(>  proportion  of  the  transportation  for  the  ammuni- 
tion and  ordnance  stores:  but  in  case  it  should  be  remo\ed.  he  was 
obliged  to  protest  against  the  measure,  and  to  deilare  not  only  that  the 
United  States  was  not  l)ound  to  furnish  either  transpoi'tation  orescoi-t 
for  the  artillery,  amnumition,  and  ordnaiice  stores,  but  also  that  his 
Government  would  have  a  claim  against  Spain  as  well  foi-  the  artillery 
as  for  the  artich's  which  it  had  pi-ovided  for  the  sul»>istrnce  of  the 
Spanish  troops  on  the  way  to  the  Havana,  should  those  articles  be 
made  use  of.'' 


"Am.  State  Papers,  For.  Kel.  IV.  749. 

^Gov.  Coppinger  to  Adj.  Gen.  Butler,  June  14.  1S21,  MSS.  Dept.  of  State. 

c  Adj.  Geii.  Butler  to  Gov.  Coppinger,  Juno  15,  1821,  MSS.  Dept.  of  State. 


284  sovereignty;  its  acquisition  and  loss.  [§  86. 

Tlie  act  of  cession  which  was  signed  by  the  commissioners  states 
that  they  had  had  several  conferences  and  had  received  documents, 
inventories,  and  phins  ap])ertainin«>"  to  the  property  and  sovereijifnt}' 
of  Si)ain.  The  act  recited  that  tlie  commissioners  had  transmitted  to 
their  (Tovernments  '"the  doultts  occurrino-  as  to  whether  the  artiUery 
oiit>ht  to  be  compreliended  in  tiic  fortifications;  and  if  the  public 
archives  rehitinj>-  to  privatt>  j)roperty  ouj^iit  to  remain  and  be  deliv«M-ed 
to  the  American  (rovernment  b\'  virtue  of  the  cession;  and  that  there 
remained  in  the  fortifications,  until  the  aforesaid  resolution  is  made, 
the  artillery,  nuinitions,  and  implements  specitied  in  a  particular  inven- 
tory, awaitino-  on  these  points,  and  the  others  appearing-  in  question 
in  our  correspond«Mice,  the  superior  decision  of  our  respective  Gov- 
ernments.*" " 

In  the  subsequent  discussion  of  the  subject  between  the  two  Govern- 
ments, the  Spanish  Govermnent  declared  that  it  would  adhere  to  the 
strict  construction  of  the  article,  and  offered  to  pay  for  the  provisions 
in  consideration  of  the  cannon  ])eing  restored  or  paid  for  l)y  the  United 
States,  the  cannon  being,  as  the  Minister  of  Foreig-ii  Ati'airs  observed,  of 
greater  value  than  the  provisions.  Mr.  Adams  re})licd  that  he  had  not 
taken  into  account  tlie  (picstion  of  value,  but  had  })roceeded  solely  on 
principle.  Tnder  tin^  term  fortitieations  the  United  States  claimed,  he 
affirmed,  the  artilici-y.  together  with  the  walls  of  which  they  formed 
the  defense.  '•Tiic  walls  without  their  artillery  were  no  fortifica- 
tions." The  United  States,  however,  did  not,  said  Mr.  Adams,  wish 
to  press  the  controversy  further,  but  would,  on  Ixnng  repaid  the  cost 
of  the  })rovisions.  permit  the  ordnance  to  be  taken  away.'' 

By  Ai-t.  II.  of  tiie  treaty  of  March  80.  1807,  ceding  Alaska  to  the 

,,    ,  United  States,  the  cession   was  declared  ''to  include 

Alaska. 

the  right  of  property  in  all  public  lots  and  squares, 
vacant  lands,  and  all  ])ublic  buildings,  fortitieations,  barracks,  and 
other  edifices  which  are  not  private  individual  i)roperty,"  as  well  as 
any  Government  archives.  i)apers,  and  documents  relating  to  the  ter- 
ritory in  ((uestion.  By  Art.  IV.  the  two  (TOvernments  agreed  to 
appoint  agents  for  the  pui'pose  of  transferring  ""'the  territory,  domin- 
ion, property,  dependencies,  and  appurtenances"  which  were  ceded 
above.  Tln^  (ioveriunent  of  the  United  States  appointed  as  commis- 
sioner General  Lovell  II.  Rousseau,  and  the  Russian  Government 
Captain  Alexis  Pestchourofl'.  The  foi'mal  delivei'v  was  made  at  Sitka, 
October  26,  1867.  The  procrs  rrrhal  stated  that  C'aptain  Pestchouroff 
delivered  to  (rcneral  Rousseau  "the  (iovcrnment  archives,  papers,  and 
documents  relating  to  the  pro])crty  and  dominion  alcove  named,  also 
the  forts  and  })uT)li(';  buildings,  including  the  governor's  house,  dock- 

"Ain.  State  Papers,  For.  Ref.  IV.  750. 

''^Ir.  AdaniH,  Sec.  of  State,  to  Mr.  Nelson,  iiiiii.  to  Spain,  A])ril  L'S,  1823,  MS.  Inst. 
U.  S.  Ministern,  IX.  183,  227). 


§  8*>-]  CESSION.  285 

3'ard.s,  ))lockh()uses.  barracks,  ho.spiUil.s,  wharves,  and  schools." 
Acconipaning-  the  proves  ixrhil  are  four  inventories  marked  A.  H,  C, 
and  D.  Inventory  A  consists  of  a  list  of  the  pu])lic  property  in  Sitka 
delivered  to  the  United  States.  This  included  five  forts,  with  their 
armaments,  and  also  a  mun])er  of  buildinufs  of  various  kinds.  No 
mention  Avhatever  is  made  of  furniture,  and  it  seems  obvious  that  it 
went  witli  the  buildinos.  Inventory  H  contained  the  property  belon<^- 
ing-  to  the  Greek  Church.  Inventory  C  contained  a  list  of  the  persons 
holding-  property  in  fee  simple  in  the  city  of  Sitka.  Inventory  I) 
contained  a  statement  of  private  property  in  Sitka.  It  specified  a 
large  mmiber  of  buildings  of  \arious  kinds,  ])ut  mentioned  no  furni- 
ture, showing  that  the  latter  was  considered  for  the  purposes  of  the 
inventory  as  ])eing  included  in  the  ])uilding.  There  was  also  a  tifth 
inventory,  marked  K.  containing  a  list  of  forts,  with  armaments,  and 
other  public  buildings  on  tiie  island  of  Kodiak  to  be  delivered  to  the 
I'nited  States." 

V  building  ere(;ted  in  18-1-5  by  the  Russian-American  ('ompany.  t)n 
land  ])elonging  to  the  Russian  Govermnent,  became  the  pi'operty  of 
that  Government,  and  as  such  was  transferred  to  the  United  States  by 
the  treat}'  of  March  30,  1867,  especially  in  view  of  the  declai-ation  of 
iii'ticle  0,  that  the  '"cession  of  territory  and  dominion"*  was  '"free  and 
unincumbered  by  anv  reservations,  privileges,  franchises,  grants,  or 
possessions  by  any  associated  companies,  whether  corporate  or  incor- 
)  orate,  Russian  or  any  other,  or  b}'  any  parties,  except  merelv  ])rivate 
ii   l'\  idual  property  holders." 

Kinkead  r.  rnited  States',  150  U.  S.  483  (1898).  Tt  appeared  l)y  the  record 
of  the  negotiations  that  tlie  I'nited  States  inerea«ed  the  amount  to  !)»•  paid 
to  Russia  for  Alaska  by  the  sum  of  S200.0()0  in  consideration  of  tiie  inser- 
tion of  article  6  of  the  treaty. 

B}-   the  ])rotocol   signed   at   Washington    August    1:^,   18!>8.   Spain 

agreed  to   '' relincpiish  all  claim  of  sovereigntv   over 

Spanish  Mands,    ^^^.  ^.^^^^  ^^  Cuba,"  and  to  -cede  to  the  United"  States 

the  island  of  Porto  Rico  and  other  islands  now  under 
Spanish  sovereignty  in  the  West  Indies."'  It  was  also  stii)idatcd  that 
Spain  should  '*  inunediately  evacuate  Cuba,  Porto  Rico,  and  tli(>  other 
islands  under  Spanish  sovereignty  in  the  West  Indies."  and  that, 
within  thirty  days  after  the  signing  of  the  ])r()tocol.  connuissioners 
shoidd  meet  at  Havana,  in  Cu])a,  and  at  San  Juan,  in  Porto  Rico,  for 
the  purpose  of  ""arranging  and  carrying  out  the  details  of  the  evacua- 
tion,"' Connuissioners  to  treat  of  peace  were  to  meet  at  Paris  not 
later  than  October  1,  18!»S. 

Prior  to  the  negotiation  of  the  treaty  of  i)eace  commissioners  on 
the  part  of  the  I'nited  States  and  of  Spain  met.  in  conformity  with  the 

"Diplomatic  C'orri'spondeJice,   IsiiS,  1.  47.">-4S4. 


28<>  SUVEKEIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§86. 

stii)ulations  of  the  protocol,  at  Havana  and  at  San  Juan.  The  Ameri- 
can commissioners  were  instructed,  as  the  relinquishment  or  cession 
of  sovereig-ntv  ))y  Spain  would  include  all  the  "immovable  property" 
beionginji-  to  the  Spanish  Government  in  the  islands,  to  '"take  into 
possession  for  the  United  States  all  pul)lic  buildings  and  grounds, 
forts,  fortirications.  arsenals,  depots,  docks,  wharves,  piers,  and  other 
tixed  property  heretofore  belonging  to  Spain;"  and  they  were  further 
instructed  as  follows:  "'The  small  arms  and  accoutrements,  batteries 
of  held  artillery,  su})ply  and  baggage  Avagons.  ambulances,  and  other 
impedimenta  of  the  Spanish  army  in  Cuba  and  the  adjacent  Spanish 
islands  you  will  permit  to  be  removed,  if  desired,  by  the  representa- 
tives of  Spain.  j)r()vided  such  removal  shall  be  effected  within  a 
reasonable  time.  The  armament  of  forts,  fortifications,  and  fixed 
batteries,  being  in  the  nature  of  immovable  fixtures,  will  not  be  per- 
mitted to  be  taken,  but  will,  in  connection  with  said  forts,  fortifica- 
tions, and  batteries,  ))e  taken  over  In'  you  into  the  possession  of  the 
United  States."*" 

The  Spanish  commissioners,  on  the  other  hand,  stated  that  the 
Spanish  tro()j)s  would  ••(•ai"i-y  with  them  their  flags,  arms,  numitions, 
equipment,  clothing,  saddhvs.  stores,  artillery  pieces  of  all  kinds  with 
the  mountings,  sets  of  arms  and  other  accessories,  as  also  all  material 
of  war  and  siinitation.  the  machines  and  stock  on  hand  of  the  estab- 
lishments of  military  industry.  I)esides  the  records  and  documents  of 
the  military  depeiidiMicies  and  army  corps."'' 

The  American  conunissionei-s  replied  "'that  under  the  law  movable 
things  became  inuiio\al)le  property  when  constructed  or  destined  for 
the  permanent  use  or  service  of  immovable  property.  This  is  not 
only  in  accord  with  the  civil  law  of  Spain,  hut  also  with  the  common 
law.  Und(M'  this  i-ule  wo  have  claimed,  and  do  now  claim,  that  all  the 
ordnanc(»  in  fortifications  or  fixed  batteries,  of  Avhatever  character, 
kind,  or  condition  no  matter  from  whence  brought,  or  what  itsorigin 
may  ha\'e  been  -all  machinery  attached  to  l)uildings  used  as  arsenals 
or  military  or  naval  construction  re})air  shops  or  navy-yards,  and  the 
shears  on  the  docks  in  lla\ana.  are  inunovahle  ])r()perty,  and  that 
Spain  has  no  right  to  dismount  oi'  remove,  or  in  any  manner  dispose 
of  the  same,  or  any  ])art  tlu'reof." 

'llw  Spanish  commissioners  declined  to  acci»j)t  this  opinion,  saying 
that  they  preferred  to  refer  the  matter  to  their  (Tovernment  for  settle- 
ment, and  remarking  tiiat  '"  they  desii-ed  to  state  that  they  hold  the 
same  views  as  to  the  real  estate  and  }>ul)lic  l)uildings,  the  property  of 
Spain  in  the  island  of  ('ut)a."' 

"iM.r.  lid.  ls;»s,  910,  1)13. 

''Tvctter  of  the  ^>pani.«h  coniiiiissioncrH  to  the  Aiiicricaii  coininissioiK'ri;,  Havana, 
Scjit.  IS,  1S!IS,  MS.  l'rofec(ling.s  of  the  Cuhaii  Kvacuation  CoiiiiiiisHioii.  Tlie  same 
position  ua.-^  taken  hy  the  S]>ani.sli  coiiiniis.'^ioiu'rs  at  San  Juan. 

'  ,MS.  rrocee<liiig.>i  of  the  Cuban  Evacuation  Coiiimi.>:»sion:  Minutes-  of  the  Joint 
Meeting  of  Nov.  16,  1898. 


§  86.]  CESSION.  287 

A  formal  ao-rcemont  as  to  the  evacuation  was  concliulcd  Xovoiiiher 
16,  18*^8,  by  which  it  was  provided  that  the  Spanish  ti-oops  shoidd 
"carry  with  them  their  flags,  small  arms  with  the  ammunition  thereto 
belong-ing.  accoutrements,  clothing,  batteries  of  tield  artillerv.  siege 
guns  not  mounted  in  Hxed  hatteries,  and  auununition  tiiereto  belong- 
ing, horses,  saddles,  supply  and  baggage  wagons  and  their  animals, 
ambulances,  medical  stores.  sul)sistence  stores,  camp  e(iuipments.  and 
records  and  archives  of  the  various  organizations  of  tiie  Spanish 
forces,  and  of  their  respective  ])ureaus."*  It  was  decided  by  the  com- 
mission that  the  floating  steel  dry  dock  at  Havana  was  to  l)e  c()nsid«'red 
as  movable  proi)erty  belonging  to  Spain:  and  it  was  suljsecpiently  pur- 
chased by  the  United  States. 

With  regard  to  other  property,  the  agreement  recited  that  an  "  irrec- 
oncilable difference  "  existed  ])etween  the  commissioners  "as  to  the 
disposition  of  the  public  property  of  Spain  in  the  island  of  Cuba,  and 
the  adjacent  Spanish  islands,  consisting  (1)  of  artillerv  in  flxed  batteries 
and  fortitications,  the  fixtures  and  other  propei'ty  theivto  l)elonging. 
as  heretofore  inventoried;"  ('2)  "of  the  machinery  and  flxtures  and 
other  property  and  material  of  Avar  heretofore  in  dispute  in  the 
•■  jVIasestranza,"  in  the  "Pirotecnia  Militar.'  and  in  the  'Arsenal'  in 
Havana,  and  of  other  military  and  naval  property  of  a  flxed  character 
in  barracks,  hospitals,  quarters,  and  other  buildings,  and  (8)  of  the  real 
estate  and  public  buildings  on  said  islands  belonging  to  or  under  the 
control  of  Spain:"  and  it  stipulated  that  "in  respect  to  said  property, 
the  status  quo  ante  shall  be  preserved  until  existing  differences  con- 
cerning the  disposition  of  said  property  shall  have  been'flnally  settled 
by  the  proper  authorities." 

With  regai'd  to  the  third  class  of  property — the  real  estate  and 
buildings  belonging  to  Spain  in  the  territories  relinquished  or  ceded 
by  her — it  appears  that  the  (juestion  was  incidentally  disposed  of  in 
the  peace  negotiations  at  Paris. 

The  American  Peace  Commission  at  Paris  proposed.  Oct.  3.  iSJ»8. 
the  following  articles: 

"The  Government  of  Spain  h(u-e))y  relinquishes  all  claim  of  sover- 
eignty over  and  title  to  Cuba. 

"The  Government  of  Spain  here)>y  cedes  to  the  United  States  the 
Island  of  Porto  Rico  and  other  islands  now  under  Si)anish  sovereignty 
in  the  West  Indies,  and  also  the  Island  of  Guam,  in  the  Ladrones." 

Accompanying  these  articles  there  was  a  stii)ulati()n  that  the  relin- 
quishment or  cession,  as  the  case  migiit  be,  included  "all  right  and 
claim  to  the  pul)lic  domain,  lots  and  scjuares.  vacant  lands.  ])ul)lic 
buildings,  fortifications  and  the  armaments  tlu'reof.  and  barracks  and 
other  structures  which  are  not  pi-ivate  individual  property."  as  well 
as  the  public  archives. 

By  a  counter  proposal  of  Oct.  7.  ISDS.  the  Spanish  Connuission. 
while  undertaking  to  relinquish  oi"  cede  "all  the  buildings,  wharves, 


288  SOVEEEIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  86. 

barracks,  fortresses,  establishments.  pul)lic  ways  of  communication, 
all  other  immovable  property  which  accordincr  to  law  attaches  to  the 
public  domain,  and  which  so  attachinj^  l)elon^s  to  the  Crown  of  Spain," 
put  forward  a  stipulation  that  all  ininiovable  property  "which  under 
the  civil  law  belongs  to  the  State  as  patrimonial  property,  and  all 
rights  and  property  of  whatsoever  kind,  which  up  to  the  ratiiication 
of  the  present  treaty  have  been  peacefully  enjoyed  and  held  in  owner- 
ship b}'  provinces,  municipalities,  public  and  private  establishments, 
ecclesiastical  and  civil  corporations,  or  any  other  collective  bodies  law- 
fully incorporated  and  having  legal  authority  to  acquire  and  hold 
propert}"  in  the  Island  of  Cuba,  and  by  private  individuals,  whatsoever 
their  nationality,  are  therefore  excluded  from  the  above  relinquishment 
and  transfer.*' 

The  American  Commission  objected  to  this  negative  clause,  on  the 
ground  that  in  one  resj)ect  it  was  unnecessary,  and  in  another  illogical. 
"So  far,"  said  the  American  Commission,  "as  it  affects  the  question 
of  legal  title  it  is  unnecessary,  since  such  title,  if  not  held  by  Spain, 
would  not  pass  to  the  United  States  by  Spain's  transfer  of  sovereignty. 
On  the  other  hand,  so  far  as  it  affects  the  question  of  sovereignty,  it 
is  illogical,  since  the  sovereignty,  which  includes  the  right  of  eminent 
domain,  would,  if  excepted  from  the  relinquishment,  remain  with 
Spain.  We  should  thus  have  the  singular  spectacle  of  Spain  relin- 
quishing her  sovereignty  over  property'  belonging  to  the  Crown,  but 
retaining  it  over  all  other  property." 

The  Spanish  Commission  subsequently  waived  the  clause  in  regard 
to  "patrimonial  property."  saying:  ""The  State,  under  the  Spanish 
laws,  exercises  all  rights  of  ownership  over  the  property  declared  by 
law  to  be  public  property,  and  it  is  plain  that  in  this  case  the  cession 
of  the  sovereignty  carries  with  it  the  cession  of  all  those  rights.  But 
the  State  in  Spain  can  also,  in  the  capacity  of  a  body  politic  or  corpo- 
ration, acquire  and  hold  real  propei'ty.  l)y  the  same  means  and  through 
the  same  processes,  as  private  persons  can  do  under  civil  municipal 
law.  This  peculiar  kind  of  j)roperty  was  the  one  referred  to  in  the 
exception  suggested  by  the  Si)anish  Commissioners.  Notwithstanding 
this  fact,  .  .  .  the  Spanish  Conuuissioners  do  hereby  waive  the  said 
exception,  and  agree  that  the  patrimonial  property  of  the  State  be  also 
included  in  the  cession  and  transfer  of  the  sovereignty  of  Spain."" 

An  agreement  was  also  reached  at  Paris  concerning  the  heavy  guns 
and  armaments  in  the  Philippines.  l)ut  not  concerning  those  in  Cuba 
and  Porto  Rico.  It  appears  by  the  recoid  of  the  negotiations  that  on 
Dec.  '1^  1898,  the  president  of  the  Spanish  Commission  brought  up  for 
discussion  the  question  of  "tho  return  to  Spain  of  the  war  material 
in  Cuba  and  Porto  Rico,  with  respect  to  which  the  evacuation  com- 

"!?.  Doc.  62,  55  Cong,  o  «>sy.,  part  2,  j)p.  22,  2S,  34,  90. 


§  86.]  CESSION.  289 

missions  had  not  come  to  a  decision,  since  such  material  in  tlic  Philip- 
pines, he  understood,  belonged  to  Spain.'""  The  ((ucstion  was  not 
then  discussed,  but,  when  it  was  raised  again,  on  the  5tli  of  December, 
the  American  Commissioners  ''declared  that  they  were  not  authorized 
to  treat"  concerning-  the  return  of  the  ^var  material  in  Cuba  and  Porto 
Rico  not  disposed  of  by  the  evacuation  commissions;  and  they  added, 
with  respect  to  the  war  material  in  the  Philippines,  "that  it  should 
be  governed  b\^  the  same  conditions  as  were  agreed  to  by  the  evacua- 
tion commissions  in  the  West  Indies."  But,  says  the  protocol,  ''the 
president  of  the  Spanish  Commission  and  his  colleagU(\s  maintained 
that  the  cession  of  the  archipelago  did  not  cari-y  and  could  not  carrv 
with  it  anything  except  Avhat  was  of  a  fixed  nature;  they  explained 
the  character  of  the  siege  artillery  and  heavy  ordnance  which  the 
Americans  claimed  for  themselves,  and  after  some  discussion  to  the 
end  of  dctermini.^.g  precisely  what  each  commission  understood  as 
portable  and  fixed  material,  it  was  agreed  that  stands  of  colors, 
uncaptured  war  vessels,  small  arms,  guns  of  all  cali])ers,  with  their 
carriages  and  accessories,  powder,  ammunition,  live  stock  and  mate- 
rials and  supplies  of  all  kinds  belonging  to  the  land  and  naval  forces 
shall  remain  the  property  of  Spain;  that  pieces  of  heavy  ordnance, 
exclusive  of  field  artillery,  in  the  fortifications,  shall  remain  in  their 
emplacements  for  the  term  of  six  months,  to  be  reckoned  from  the 
ratification  of  the  treaty;  and  that  the  United  States  might  in  the 
meantime  purchase  such  material  from  Spain  if  a  satisfactory  agree- 
ment Vjetween  the  two  governments  on  the  subject  should  ]>e  reached,"* 
This  agreement  was  embodied,  in  almost  identical  terms,  in  Art.  V. 
of  the  treaty  of  peace.  And  it  was  held  ])y  the  United  States  that, 
under  this  article,  the  Spanish  guns  and  other  war  material  captured 
by  the  Navy  at  Cavite  during  active  war  must  be  deemed  to  be  the 
property  of  Spain.'' 

«S.  Doc.  62,  55  Cong.  3  sess.,  part  2,  p.  226. 

'^S.  Doc.  62,  55  Cong.  8  sess.,  part  2,  pp.  228-229.    See,  ali^o,  Magoon's  Reports,  5ti6. 

'■"  While  it  might  be  admitted  that  there  would  be  some  question  of  the  ownership 
of  this  material  in  the  absence  of  any  provision  with  reference  thereto  in  the  treaty, 
there  would  not  ap])ear  to  be  any  douht  as  to  the  right  or  power  of  the  Commission 
to  treat  of  the  subject  in  the  negotiations.  .  .  .  The  Peace  Conunissioners  did  treat 
of  the  matter,  reached  an  expre.«s  agreement  in  regard  to  it,  and  em1)odied  it  in  the 
treaty,  without  limitation  or  definition  as  to  whether  the  property  in  question  might 
have  passed  under  the  control  of  the  Ignited  States  forces  either  prior  to  (ir  sulisequent 
to  the  suspension  of  hostilities  which  followed  the  signing  of  the  Peace  Protocol  in 
Waslungton  on  the  12th  of  August,  1898.  This  being  so,  it  is  not  p(>rceived  how  it 
could  be  claimed  that  the  property  in  question  was  not  affected  ])>■  the  ti-eaty  because 
of  its  having  been  captured  during  active  war,  unle.«s  upon  the  extreme  contention 
that  such  material  having  been  cai)tin-ed  by  the  United  States  naval  forces  before  the 
date  of  the  treaty  is  to  Ije  considered  as  not  coming  under  the  description  of  jM-ojierty 
'belonging  to  the  land  and  naval  forces  of  Spain.'     As  to  this  I  may  observe  that  had 

H.  Doc.  551 19 


290  soveeeignty:  its  acquisition  and  loss.  [§  8T. 

"A  distinction  is  sought  to  be  made  between  those  waters  of  rivers 
which  belong,  b}'  the  law  of  Spain,  to  the  State  or  Crown  and  those 
which  belong  to  the  public  of  Porto  Rico.  For  practical  purposes,  in 
the  disposition  of  this  case,  I  can  see  no  difference.  Whatever  prop- 
erty or  property  rights  belonged  to  the  Crowii  of  Spain  or  to  the  indeti 
nite  body  known  as  'the  public  of  Porto  Rico'  were,  bv  the  treaty 
of  Paris,  transferred  to  and  became  the  property  of  the  United  States 
of  America." 

Griggg,  At. -Gen.,  July  27,  1899,  22  Op.  540,  547.  Under  the  Spanish  law, 
lands  under  tide  water  to  hijrh-water  mark  in  the  ports  and  harbors  in  the 
Spanish  AVest  Indies  belonged  to  the  Crown,  and,  a.s  the  property  of  the 
Crown,  they  beeanie,  by  the  treaty  of  cession,  a  i)art  of  the  public 
domain  of  the  United  States,  ((iriggs.  At. -Gen.,  July  26,  1899,  22  Op. 
544.) 

4.  Conquest. 

S  S7. 

The  holding  of  a  conquered  territory  is  regarded  as  a  mere  military 
occupation  until  its  fate  shall  be  determined  at  the  treaty  of  peace.  If 
it  be  ceded  by  the  treaty,  the  accpiisition  is  confirmed,  and  the  ceded 
territory  becomes  a  part  of  the  nation  to  which  it  is  annexed,  either  on 
the  terms  stipulated  in  the  treaty  of  cession,  or  on  such  as  its  new 
master  shall  impose.  On  such  a  transfer  of  territory  it  has  never  been 
held  that  the  relations  of  the  inhal)itants  with  each  other  undergo  any 
change.  Their  relations  with  their  former  sovereign  are  dissolved, 
and  new  relations  are  created  between  them  and  the  Government  which 
has  acquired  their  territory.  The  same  act  which  transfers  their  coun- 
try transfers  the  allegiance  of  those  who  remain  in  it;  and  the  law, 
which  may  be  denominated  political,  is  necessarily  changed,  although 
that  which  regulates  the  intercourse  and  general  conduct  of  individuals 
remains  in  force. until  altered  l)y  the  newly  created  power  of  the  state. 

American  Insurance  Co.  r.  Canter,  1  Peters,  511. 


any  such  important  qualification  or  limitation  been  intendetl  by  the  framers  of  the 
Peace  Treaty  it  is  hardly  conceival)le  that  it  should  not  have  found  expression  in  the 
language  of  that  compact.  My  view  finds  confirmation  in  the  use  in  the  treaty  pro- 
vision in  (juestion  of  the  words  '  uncaptured  war  vessels,'  the  object  of  which  wa'^  to 
except  from  the  property  to  l)e  turned  over  to  Spain  the  vessels  which  had  been  cap- 
turned  by  Admiral  Dewey.  Xo  such  ili.^tinction  is  made  as  to  any  of  the  other 
property  or  materials  name<l."  (Mr.  Hill,  Acting  Sec.  of  State,  to  the  Sec.  of  War, 
Sept.  23,  1899,  240  MS.  Dom.  Let.  2.5.S.  See  also,  Mr.  Hay,  Sec.  of  State,  to  the  Sec. 
of  the  Xavy,  Apr.  21,  1900,  244  MS.  Dom.  I^t.  484,  saying:  "In  Cuba  and  Porto 
Rico  the  Spaniards  had  the  right  (and  u.«ed  it)  to  carry  away  any  of  the  de.scril)ed 
property  they  could  find,"  which  it  was  agreed  they  might  take  away,  "whether  it 
had  been  captured  by  the  United  States  or  not.  The  oidy  test  was  that  the  proj)erty 
should  be  fouml  in  existence  at  the  time  of  the  evacuation  and  that  the  fact  that  it  had 
belonge<l  to  the  Spanish  (Government  should  be  shown.  The  evacuators  simply  took 
it  in  the  condition  in  which  they  found  it.") 


§  8'^']  CONQUEST.  291 

By  the  conquest  and  niilitaiy  occupation  ot  (astinc  hy  the  liiiti.sh 
on  September  1,  1814,  that  territory  passed  under  the  teniixn-ai'y  alle- 
giance and  sovereig'nt\'  of  the  enemy.  The  sovei-eitiiity  ol"  the  I'nited 
States  over  the  territory  was  suspended  durino-  such  <>ccui)ation,  oo 
that  the  laws  of  the  United  States  could  not  !)(>  I'iolitfully  enforced 
there,  or  be  obligatory  upon  the  iidia])itants  wlio  remained  and  sub- 
mitted to  the  conc^uerors.  But,  on  the  other  hand,  a  territ(»r\  con- 
quered by  an  enemy  is  not  to  be  considei'ed  as  incoi-porated  into  the 
dominions  of  that  enemy,  without  a  renunciation  in  a  ti-eaty  of  peace, 
or  a  long  and  permanent  possession.  Until  sucii  inc<)i[)orati()n,  it  is 
still  entitled  to  the  full  l)enefit  of  the  law  of  i)ostliminy. 

U.  S.  V.  llayvvanl,  2  (iall.  485.     Hee  T;.  S.  r.  liicc,  4  Wlirat.  24(). 

The  capture  and  occupation  of  Tampico,  by  the  arms  of  the  Tnited 
States,  during  the  war  with  Mexico,  though  sutiici(Mit  to  caus(>  it  to  l)e 
regarded  l)y  other  nations  as  part  of  our  teri'itory,  did  not  make  it  a 
part  of  the  United  States  under  our  constitution  and  laws;  it  remained 
a  foreign  country'  within  the  meaiungof  the  revenue  laws  of  the  United 
States. 

Fleming  r.  Page,  U  Howard,  ()0;^. 

"The  authority  and  jurisdiction  of  Mexican  officials  [in  California] 
terminated  on  the  Tth  of  July,  1S4().  On  that  day  the  forces  of  the 
United  .States  took  possession  of  ^Monterey,  the  capital  of  Ualifoi'nia, 
and  soon  afterwards  occupied  the  principal  portions  of  the  country, 
and  the  military  occupation  continued  until  after  the  treaty  of  pc^ace. 
The  political  department  of  the  government  designated  that  day  as  tlie 
period  when  the  coiupuvstof  California  was  complete  and  the  authority 
of  the  officials  of  Mexico  ceased." 

]More  r.  Steinl)afh  (1888),  127  II.  S.  70,  SO,  citing  Fremont  /•.  rnitcd  Slater, 
17  How.  542,  5():5. 

Down  to  the  middle  of  the  eighteenth  century  the  jtractice  of  helligerent  nations 
accorded  with  the  theory  that  all  kinds  of  jjroperty,  coming  into  the  hands 
of  one  of  the  parties  to  the  war,  vested  in  him  as  coiKiueror  and  were  siil)- 
ject  to  his  a])Solnte  disposal,  so  that  lie  might  even  alienate  or  rvdc  the 
occn])ied  territory  while  the  issue  of  hostilities  I'l-mained  undecided.  lUit 
since  that  period  this  rule  has  heen  either  ahandoneil  or  subjected  to  very 
material  limitations  both  in  theory  and  in  jiractice.  With  reference  to 
what  is  said  in  the  foT'cgoing  case,  it  is  to  hi'  reniemlH're<l  that  ]ierniancnt 
title  to  California  jiassed  to  the  I'nited  States  under  the  treat\  of  ( iuada- 
hipe  Hidalgo. 

>See  the  cases  of  the  "(xeorgiaua"  and  '"Lizzie  Tliom]isiin,"'  Mooic,  int. 
Arbitrations,  II.  I(i0()-1()08. 

See,  as  to  the  validity  of  the  payment  to  the  temjiorary  occupant  of  ilebts 
due  to  the  titular  sovereign,  the  case  of  the  o(cui)ation  of  Naples  by 
Charles  YIII.  in  1495,  Phillimore,  Int.  Law,  II L  s;iS;  and,  as  to  the  valid- 
ity of  the  payment  of  such  debts  to  the  conqueror  who  gains  and  main- 
tains a  linn  possession,  the  case  of  Hesse  Cassel,  id.  841. 


292  sovereignty:  its  acquisition  and  loss,  [§  87. 

At  tlie  International  American  Conference,  in  Washington,  the  delegates  of 
the  Argentine  Republic  and  Brazil  offered,  January  15,  1890,  a  series  of 
resolutions,  the  eighth  article  of  which  read  as  follows:  "  Acts  of  conquest, 
whether  the  ol)ject  or  the  conse(iuence  of  the  war,  shall  be  considered  to 
l)e  in  violation  of  the  ])uhlic  law  of  America."  (Minutes  of  the  Interna- 
tional American  Conference,  107,  10<S. ) 

The  resolutions  were  referred  to  the  connnittee  on  general  welfare,  which, 
April  IS,  1S90,  reconunended  tlie  adoption  of  the  following  declarations: 

"1.  That  the  principle  of  conquest  shall  never  hereafter  be  recognized  as 
admissil)le  under  American  public  law. 

"2.  That  all  cessions  of  territory  made  subsequent  to  the  present  declarations 
shall  be  absolutely  void  if  made  under  threats  of  war  or  the  presence  of 
an  armed  force. 

"8.  Any  nation  from  which  such  cessions  shall  have  been  exacted  may  always 
demanil  that  the  (piestion  of  the  validity  of  the  cessions  so  made  shall  be 
submitted  to  ar])itration. 

"4.  Any  renunciation  of  the  right  to  have  recourse  to  arbitration  shall  \ie 
null  and  void  whatever  the  time,  c-ircnmstances,  and  conditions  under 
which  such  renunciation  shall  have  been  made." 

These  declarations  were  subscribe<l  by  three  members  of  the  committee  resjiec- 
tively  representing  the  Argentine  Repu])lic,  Bolivia,  and  Venezuela. 
Three  other  members  representing  Colombia,  Brazil,  and  Guatemala 
stated  that  they  adopted  only  the  first  of  the  declarations. 

Mr.  Varas,  a  delegate  from  C'hile,  state<l  that  the  delegation  from  that  country 
would  abstain  from  votingor  taking  part  in  the  debate  on  the  resolutions. 

Mr.  Henderson,  a  delegate  from  the  Ignited  States,  offered,  as  expressing  the 
views  of  the  United  .States  delegation,  the  following  resolution: 

"  I r/fcrm.',  in  the  oi)inion  of  this  conference,  wars  waged  in  the  spirit  of 
aggression  or  for  the  purpose  of  concjuest  should  receive  the  condemnation 
of  the  civilized  world:  Therefore 

^'Itewlrcd,  That  if  any  one  of  the  nations  signing  the  treaty  of  arbitration  pro- 
po.sed  by  the  conference,  shall  wrongfully  and  in  disregard  of  the  provi- 
sions of  said  treaty,  prosecute  war  against  another  party  thereto,  such 
nations  shall  have  no  right  to  seize  or  hold  property  by  way-of  conquest 
from  its  adversary." 

After  a  long  discussion,  in  which  the  delegate  from  Peru  supported  the  recom- 
mendation of  the  committee  as  a  whole,  the  report  was  adopted  by  a 
majority  of  lo  to  1.  The  delegations  voting  affirmatively  were  Hayti, 
Nicaragua,  Peru,  (iuatemahi,  Colombia,  Argentine  Republic,  Costa,  Rica, 
Paraguay,  Brazil,  Honduras,  ]\Iexico,  Bolivia,  Venezuela,  Salvador,  and 
Iv-uador.  The  United  States  voted  in  the  negative,  while  Chile  abstained 
from  voting. 

Further  discussion  then  took  place,  after  which  a  recess  wa,s  taken  in  order 
tliat  an  agreement  might  1h'  arrived  at  which  would  secure  the  vote  of  the 
I'nited  States  delegation.  On  the  session  being  resumed,  Mr.  Blaine  pre- 
sented the  following  plan:- 

"1.  That  the  i)rinciple  of  conquest  shall  not,  during  the  continuance  of  the 
treaty  of  arbitration,  be  recognized  as  admissible  under  American  public 
law. 

"2.  That  all  cessions  of  territory  made  during  the  continuance  of  the  treaty  of 
arliitration  shall  be  void  if  made  under  threats  of  war  or  the  presence  of 
an  armed  force. 

"3.  Any  nation  from  which  such  cessions  shall  be  exacted  may  demand  that 
the  validity  of  the  cessions  so  made  shall  )»e  submitted  to  arbitration. 

"4.  Any  renunciation  of  the  right  to  arbitration  made  under  the  conditions 
named  in  the  second  section  shall  be  null  and  void." 


§  88.]  PBESO-RTPTTON.  293 

The  conference  unanimously  agreed  to  accept  this  a.s  a  substitute  for  tlie  former 
report,  Chile  abstaining  from  voting.  (^Minute.sof  tlic  International  Amer- 
icf-n  Conference  (1889-90),  798-80(5.  The  plan  <if  a  treaty  of  ar])itration 
adopted  by  the  conference  never  l>ecame  oi)erdtive. ) 

5.  Prksckiitiox. 

§  8S. 

Grotius,  referring  to  the  theory  of  Vasquius.  that  the  doctrine  of 
prescription  was  inapplica))le  as  ))et\veen  nations,  says: 

pmions  0  pu  -    u  ygt    if  we  admit  this,  there  seems  to  follow  this 
heists.  '  '  . 

most  unfortunate  conclusion,  that  controversies  con- 
cerning kingdoms  and  the  boundaries  of  kingdoms,  are  never  extin- 
guished by  any  lapse  of  time:  which  not  only  tends  to  disturV)  the 
minds  of  many  and  perpetuate  wars,  })ut  is  also  repugnant  to  the 
common  sense  of  mankind.'' 

Grotius,  De  Jure  Belli  ac  Pacis,  Lib.  II.  Cap.  IV.  §  1. 

The  original  text  reads:  "Atque  id  si  admittimus,  seqni  videtur  maximum 
incommodum,  ut  contr(jver<ia'  de  regnis  regnornmque  finibus  nullo 
unquam  tempore  extinguantur:  quod  non  tantum  ad  perturliandos  mul- 
tormn  animos  et  Ix'lla  serenda  pertinet,  sed  et  comniTmi  gentium  sensui 
repugnat." 

Prescription  was  a  title  known  to  the  Roman  Law.  (Institutes  of  Justinian, 
Lib.  II.  Tit.  VI. ) 

"And  perhaps  we  may  say  that  this  is  not  merely  a  matter  of  pre- 
sumption, but  that  this  law  is  established  by  the  voluntary  law  of 
nations,  that  a  possession  l)eyond  memory,  not  inttn'rupted.  nor  dis- 
turljed  b}^  appealing  to  an  arl)itrator,  al>sohttely  transfers  dominion. 
It  is  credible  that  nations  have  agreed  on  this,  since  such  a  rule  is 
most  conducive  to  the  put)lic  peace.*' 

Grotius,  De  Jure  BelU  ac  Pacis,  Lil).  IT.  Cap.  IV.  §  9. 

The  original  text  reails:  "Ac  forte  non  improl)abiliter  dici  jwtest  n'm  esse 
lianc  rem  in  sola  pncsumptione  positain,  se<l  jure  gentium  voluntario 
induc-tam  banc  legem,  ut  possessio  memoriam  excedens,  non  intcrrupta, 
nee  provocatione  et  arbitrmn  interj)eHata,  omnino  dominium  transferret. 
Credibile  est  enim  in  id  consensisse  gentes.  cum  ad  i)acem  coimmmcm  id 
vel  maxime  interesset." 

That  the  doctrine  of  international  j)rescription  is  sometimes  discussed  liy 
analogy  to  the  rule  of  the  coimnon  law  in  matters  of  i)rivate  litiu^aliou,  as 
if  it  dei)ended  upon  i)resumptioii  as  to  a  jirior  grant,  )nay  be  seen  in  the 
following  passage:  "Xow,  mere  la])se  ()f  time,  iiidei>endent  of  leLrislatinii  or 
positive  agreeTuent,  cannot  of  itself  eitlier  give  or  destroy  title.  It  gives 
title  only  so  far  as  it  creates  a  ]>resumi)tion,  eiinivali'iit  to  ;>rMMi'.  that  a  title 
exists,  derived  from  higher  sources:  it  (Ii's-lro)j><  title  only  beciuse  it  creates 
a  like  presumption  that,  whatever  tiie  title  may  have  been,  it  lias  been 
transferred  or  a})andoned.  Thus  it  is  merely  evi<lence  and  notiiing  more. 
It  creates  a.  lyresninpfiou  equivalent  to  full  proof.  I'.iit  it  differs  from  ]>roof 
inthi.s,  that  proof  is  ayndimce  and  final,  whereas  ])resinnption  is  conclusive 
only  until  it  is  met  by  counter-proof,  or  a  stronger  counter-pre.«umi)tion." 
(Mr.  Upshur,  Sec.  of' State,  to  Mr.  Kveri'tt,  min.  to  I'.nglaiKl,  ( >ct.  9,  1843, 
MS.  In.«t.  Great  Britain,  XV.  148.) 


294  sovereignty:  its  acquisition  and  loss.  [§  88. 

'"The  triinquillity  of  tho  people,  the  siifety  of  states,  the  happiness 
of  the  hunuin  race,  do  not  allow  that  the  possessions,  empire,  and 
other  rights  of  nations  should  remain  uncertain,  subject  to  dispute 
and  ever  ready  to  occasion  bloody  wars.  Between  nations,  therefore, 
it  becomes  necessary  to  admit  prescription  founded  on  lensfth  of  time 
as  a  valid  and  incontestable  title.'' 

Vattel,  Law  of  Nations,  Lib.  II.  Cap.  XT,  §  149. 

"The  solid  rock  of  prescription, — the  soundest,  the  most  general, 
and  the  most  rc^coj^-n ized  title  between  man  and  man  that  is  known  in 
municipal  or  in  public  jurisprudence. — a  title  in  which  not  arbitrary 
institutions,  but  the  eternal  order  of  things,  gives  judgment;  a  title 
which  is  not  the  creature,  Init  the  master,  of  positive  law;  a  title  which, 
though  not  fixed  in  terms,  is  rooted  in  its  principle  in  the  law  of 
nature  itself,  and  is  indeed  the  original  ground  of  all  known  property: 
for  all  property  in  soil  will  always  be  traced  back  to  that  source,  and 
will  rest  there." 

Edmund  Burke,  Works  (Little,  Brown  c*c  Co.,  1S()7),  VT.  412. 

"  Lapse  of  time,  in  the  case  ecjually  of  nations  as  of  individuals,  robs 
the  parties  of  the  means  of  proof,  so  that  if  a  bona  fide  possession 
were  allowed  to  ])e  questioned  l)v  those  who  have  acquiesced  for  a  long 
time  in  its  enjoyment  l)y  the  possessors,  length  of  possession,  instead 
of  strengthening,  would  weaken  territorial  title.  .  .  .  Thus,  in  regard 
to  the  tei'ritories  of  the  Hudson's  Bay  Company,  it  was  alleged  in  the 
negotiations  preliminary  to  the  ti'caty  of  Utrecht,  that  the  French  had 
acquiesced  in  the  settlement  of  the  Bay  of  Hudson  ))y  the  company 
incorporated  by  Charles  II.  in  16t)?>;  since  !M.  Fontenac,  the  Governor 
of  Canada,  in  his  correspondence  with  Mr.  Baily,  who  was  Governor  of 
the  Factories  in  1637,  never  complained,  '  for  several  years,  of  an}'  pre- 
tended injuiy  done  to  the  Frencii  by  the  said  company's  settling  a 
trad(^  and  l)uilding  of  forts  at  tlie  bottom  of  the  bay.'" 

Twiss,  The  Oregon  Territory,  12-"),  citing  a  "General  Collection  of  Treaties" 
(London,  1710-':;.S),  I.  4"4(). 

"There  uncpiestionaldy  is  a  lapse  of  time  after  which  one  state  is 
entitled  to  exclude  (nery  other  from  property  of  which  it  is  in  actual 
possession.  In  other  words,  there  is  an  IntiMMiational  Prescription, 
whether  it  be  called  Tnunemorial  Possession,  or  by  any  other  name. 
The  peace  of  the  world,  the  highest  and  best  interests  of  humanity, 
the  fuUillment  of  the  ends  for  which  states  exist,  ret[uire  that  this 
doctrine  be  firndy  incoii^orated  in  the  Code  of  International  Law." 

riiilliiuore,  Int.  Law,  I.  mS,  §  CCLVIII. 

"The  writers  on  natural  law  have  (piestioned  how  far  that  peculiar 
species  of  presumption,  arising  from  the  lapse  of  time,  which  is  called 


>^  ^'^•]  PRESCEfPTTON.  295 

li-emiipiion,  is  justly  applicable,  as  ))otweon  nation  and  nation;  hut 
the  constant  and  approved  practice  of  nations  shows  that,  ^^\  whatever 
name  it  is  called,  the  uninterrupted  possession  of  territory,  or  other 
])roperty,  for  a  certain  length  of  time,  l)y  one  state,  excludes  the 
claim  of  every  other;  in  the  same  manner  as,  by  the  law  of  nature  and 
th(»  municipal  code  of  every  civilized  nation,  a  similar  possession  bv 
an  individual  excludes  the  claim  of  every  other  person  to  the  article 
of  property  in  question." 

Wheatun,  Elements,  Dana's  ed.  239. 

Dana,  in  a  note  to  tliis  i)afjsage,  observes  that  Phillimore  classes  Kliiber  and 
^lartens  as  denying  to  ijreseriijtion  a  place  in  international  law,  and  (Jro- 
tius,  Ileineccius,  Wolff,  3Iably,  Yattel,  Bynkerskoek,  Rutherforth,  Whea- 
ton,  and  Burke  as  maintaining  it. 

"Title  In'  prescription  arises  out  of  a  long-continued  possession, 
where  no  original  soui'ce  of  proprit>tary  right  can  l)e  shown  to  exist, 
or  where,  possession  in  the  first  instance  being  wrongful,  the  legiti- 
mate proprietor  has  neglected  to  assert  his  right,  or  has  l)een  unable 
to  do  so." 

Hall,  Int.  Law  (4tb  ed.),  123,  sec.  36. 

'"No  human  transactions  are  unaffected   b}- time.     Its  influence  is 

seen  on  all  things  sul)ject  to  change.     .     .     .     For 
Judicial  decisions.      ,i  .,        i?     •    i  ^         i     .i  ^     -    -  •     t    •  i      i 

the  security  of  rights,  whether  of  states  or  individuals, 

long  possession  under  a  claim  of  right  is  protected.     And  there  is  no 

controversy   in  which  this  principle  may  be  involved  with  greater 

justice  and  propriety  than  in  a  case  of  disputed  ))oundary." 

Khode  Island  r.  :\rassachusetts  (1846),  4  Howard,  591,639. 
See,  also,  Ilandly's  Lessee  v.  Anthony  (1820),  5  Wheat.  374. 

"But  al)ove  iill  the  evidence  of  former  transactions  and  of  ancient 
witnesses,  and  of  geological  speculations,  there  are  some  uncontro- 
vert(Kl  facts  in  the  case  which  lead  our  judgment  irresistibly  to  the 
conclusion  in  favor  of  the  claim  of  Kentucky.  It  was  over  seventy 
3'ears  after  Indiana  became  a  State  before  this  suit  was  commenced, 
and  during  all  this  period  she  never  asserted  any  claim  by  legal  pro- 
ceedings to  the  tract  in  (piestion.  ...  It  was  not  shown  . 
that  an  oflicer  of  hers  executed  any  process,  civil  or  criminal,  within 
it,  or  that  a  citizen  residing  upon  it  Avas  a  voter  at  her  polls,  or  a 
juror  in  her  courts,  or  that  a  deed  to  any  of  its  lands  is  to  bt-  found 
on  her  records,  or  thiit  any  taxes  were  collected  from  rosjdents  upon 
it  for  her  revenues.  .  .  .  It  is  a  principle  of  publi«'  law  univer- 
sally recognized,  that  long  acquiescence  in  the  ])ossession  of  territory 
and  in  the  exerci.se  of  dominion  and  sovereignty  over  it,  is  conclusive 
of  the  nation's  title  and  rightful  authority." 

Indiana/'.  Kentucky  ( 1890),  136  T.  S.  47it,  ciling  Rhode  Island  r.  Mas.^-aclmsetts, 
and  the  j)assages  from  Vattel  and  \Vlicat<in,  supra. 


296  soveeeignty:  its  acquisition  and  loss.  [§  88. 

The  line  between  Indiana  and  Kentucky  was  run  in  conformity  with  the  fore- 
going decision,  which  assigned  Green  River  Island,  the  territory  in  dispute, 
to  Kentucky.  (Indiana  v.  Kentucky  (1895),  159  U.  S.  275;  (1896),  163 
U.  S.  520;  (1897),  167  U.  S.  270.) 

Counsel  for  Indiana  urged,  in  opposition  to  the  claim  of  prescription,  the  maxim 
iiulhim  tentpns  occurrit  regi;  but  this  maxim  of  the  common  law,  governing 
the  relations  of  sovereign  and  subject,  is  manifestly  inapplicable  to  the 
relations  between  independent  states.  Nor  is  it  always  maintaine<i  in  favor 
of  the  sovereign  as  against  his  sul)ject.  "  Though,  lap.«e  of  time  does  not 
of  itself  furnish  a  conclusive  bar  to  the  title  of  the  sovereign,  agreeably 
to  the  maxim,  niillitia  irnipiif^  occurrit  rei/i;  yet  if  the  adverse  claim  could 
have  had  a  legal  commencement,  juries  are  advised  or  instructed  to  pre- 
sume such  commencement,  after  many  years  of  uninterrupted  possession 
or  enjoyment."  (Unitod  States  r.  Chavez  (1899),  175  U.  S.  509,  522.  See 
Peabody  v.  United  States,  175  V.  S.  546;  Chavez  v.  Ignited  States,  175 
U.  S.  552. ) 

See,  also,  the  opinion  of  Little,  comr.,  in  Williams  r.  Venezuela,  Moore,  Int. 
Arbitrations,  IV.  4181-4199. 

The  doctrine  of  prescription  is  impliedly  recognized  in  the  various  treaty  stipu- 
lations which  have  l)een  made  for  the  joint  occupation  of  disputed  territory, 
one  of  their  olijects  in  such  case  being  to  negative  the  inference  of  title  from 
long  continued  possession  by  eitlier  party  of  a  particular  portion  of  such 
territory.  See,  as  illustrations,  the  treaties  between  the  I'nited  States  and 
GreatBritainofOct.  20, 1818  (Art.  III. ),  and  Aug.  6, 1827  (Art.  I. ),  inrelation 
to  Oregon. 

As  to  the  requisite  duration  of  occupation  there  can  be  no  "arl)i- 

trary  time  limit  except  through  the  consensus,  ao^ree- 

,       ,  ment.  or  uniform  u.saoe  of  civilized  states.     It  is  equally 

boundary.  ,  "  ,  ^  ■ 

ol)vious  and  uuu-h  more  important  to  note  that,  even 
if  it  were  f»'asil>le  to  esta])lish  such  arl)itrary  period  of  prescription  h\ 
international  a<^reement.  it  would  not  he  wise  or  expedient  to  do  it. 
Each  cas(^  should  ]>e  h^ft  to  de})end  u]X)n  its  own  facts.  A  state  which 
in  trood  faith  colonizes  as  well  as  occupies,  brings  a])Oiit  large  invest- 
ments of  cai)ital,  and  founds  populous  settlements  would  justly  be 
credited  with  a  sufficient  title  in  ji  much  shorter  space  than  a  state 
whose  posses.sion  was  not  marked  by  any  such  changes  of  .stutiis. 
Considv  rations  of  this  nature  induce  the  leading  English  authority  on 
international  law  to  declare  that,  on  the  one  hand,  it  is  'in  the  highest 
degree  irrational  to  deny  that  pr(>scri})tion  is  a  legitimate  means  of 
internatioiud  aiquisition:'  and  that,  on  the  other  hand,  it  will  'be 
found  both  inexpedicnit  and  impracticable  to  attempt  to  detine  the 
exact  period  within  which  it  can  l)e  said  to  have  become  established, 
or.  in  other  words,  to  settle  the  precise  limitation  of  time  which  gives 
validity  to  the  title  of  national  possessions,'     Again: 

•'  'The  proofs  of  prescriptive  possession  are  simple  and  few.  The}' 
are  principalh'  publicity,  continued  occupation,  absence  of  interrup- 
tion (usurpatio),  aided,  no  doubt,  generally,  ])oth  morally  and  legally 
speaking.  ))y  the  emplovment  of  labor  and  capital  upon  the  possession 


§  88.]  PREsrRiPTi<»N.  297 

by  the  new  po.sses.sor  duriiio-  tlic  pcM-iod  of  silence,  or  the  passivenoss 
(inertia),  or  the  absence  of  any  attenii)t  to  exercise  proprietaiv  lif^hts 
by  the  former  possessor.  The  period  of  time,  as  has  been  repeatedly 
said,  can  not  ha  lixed  by  international  law  l)etween  nations  as  it  mav 
be  b}'  private  law  ])etween  individuals.  It  must  depend  upon  variable 
and  varying  circumstances:  ])ut  in  all  cases  these  ])roofs  would  be 
required.' 

""The. inherent  justness  of  these  observations,  as  well  as  Sir  Ko])ert 
Phillimore's  great  weight  as  authority,  seems  to  show  satisfactorily 
that  the  condition  of  international  law  fails  to  furnish  any  im|)erative 
reasons  for  excluding  boundary  controversies  from  the  sc(^pe  of  general 
treaties  of  arbitration.'' 

^tr.  Olney,  8ec.  of  State,  to  Sir  Julian  l^aiincetutc,  liritisli  amhassador,  June 
22,  189»>,  For.  Rel.  1S96,  2:^2.  2:m;. 

•"In  dei'iding  the  matters  submitted,  the  arbitrators  shall  ascertain 
all  facts  which  they  deem  neci^ssary  to  a  decision  of  the  controversy, 
and  shall  be  governed  by  the  following  i-ides,  which  are  agreed  upon 
by  the  high  contracting  parties  as  rules  applicable  to  the  case,  and  by 
such  principles  of  international  law  not  inconsistent  therewith  as  the 
arbitrators  shall  determine  to  Ix'  applicable  to  the  case. 

•'  KULES. 

••(//)  Adverse  holding  or  prescription  during  the  period  of  fifty 
years  shall  make  a  good  title.  Tlie  arl)itrators  may  deem  exclusive 
political  control  of  a  district,  as  Avell  as  actual  settlement  thereof, 
sufficient  to  constitute  ad\-erse  holding  or  to  make  tith^  by  pi-escription. 

•■(//)  The  arbitratoi's  may  recognize  and  give  eflect  to  rights  and 
claims  restiTig  on  any  other  gi'ound  whatever,  valid  according  to  inter- 
national law.  and  on  any  principles  of  international  law  which  the 
ar])itrators  may  deem  to  be  applica))le  to  the  case  and  which  are  not 
in  contravention  of  the  foregoing  rule. 

''{(•)  In  determining  the  boundary  line,  if  ten-itory  of  one  party  he 
found  ])y  the  tril)iuuil  to  ha\'e  been  at  tlie  date  of  this  treaty  in  the 
occupation  of  the  subjects  or  citizens  of  the  other  ])arty.  such  etl'ect 
shall  be  given  to  such  occupation  as  reason,  justic(\  the  ])rinci})les  of 
international  law,  and  the  eiiuities  of  the  case  shall,  in  the  oi)iiiioii  of 
the  tribunal.  re(|uire." 

Art.  IV.,  Treaty  between  (Jreat  Britain  ami  Vcncziu-la.  cunclinUMl  at  W  asiiipfi- 
ton,  Feb.  2,  ]81t7,  ft-r  tlie  settlement  "l  tiie  Ix.nniiary  !i(t\\<iMi  British 
(iiiiana  and  Venezuela.  This  article  was  taken  fnmi  a  >\rdil  wliich  wa.>i 
negotiated  between  the  (ioverinnents  of  the  I'niteil  States  anil  (ireat 
Britain,  and  which  wa.s  signed  at  Wa-hiii_Mnii  N..\.  12,  Is'.Hi,  l>y  Mr. 
Olney,  Secretary  of  State,  and  Sir  .Iiilian  I'aunrti'otr.  P.ritish  minister,  as 
the  basis  (if  a  treaty  hetween  (ireat  I'-ritain  and  \"rne/.nela.  (For.  Kel. 
ISiH),  254.) 


298  SOVEKEIGNTY  :    ITS    ACQUISITION    AND   LOSS.  [§  89. 

(\   Ahandonmknt. 

§  81». 

"There  was  a  (iis])ute  of  long  standin*>"  ))etween  France  and  England 
respecting  Santa  Lucia,  one  of  tlie  Antilles  Islands.  After  the  treaty 
of  Aix-la-ChapelK^  (174S),  the  matter  was  referred  to  the  decision  of 
certain  coniinissioners,  and  it  was  the  subject  of  vaiMous  State  papers  in 
1751  and  ITal.  The  French  negotiators  maintained  that,  though  the 
English  had  estaldished  themselves  in  l()8i».  they  had  been  driven  out  or 
massacred  })y  the  C'arihbees  \n  1«>40,  and  they  had,  (dutno  et  facto  and 
sine  s/h'  redeundu  abandoned  the  island;  that  Santa  Lucia  being  vacant^ 
the  French  had  seized  it  again  in  KJoO,  when  it  became  inmiediat^^ly, 
and  without  the  necessity  of  any  prescriptive  aid,  their  property. 
The  English  negotiators  contended  that  their  denliction  had  been 
the  result  of  violence^,  that  they  had  not  (dxiitdoiiHl  i\w  island  sl/ie  xpe 
Tedcuudi^  and  that  it  was  not  competent  to  France  to  profit  by  this  act 
of  violence,  and  sui'reptitiously  obtain  the  teri'itory  of  another  State; 
and  that  by  such  a  proceeding  no  doiiiliintin  could  accrue  to  them. 
The  principal  discussion  turned,  not  upon  the  nature  of  the  conditions 
of  Prescriptive  Ac({uisition,  l)ut  upon  the  nature  of  the  conditions  of 
Voluntary  Deieliction.  by  which  the  i-ights  of  pi-operty  wei-e  lost,  and 
th«>  possession  returned  to  the  class  of  vacant  and  unowned  {ixd^GTCora) 
territories." 

Pliilliinon',  Int.  T-a\v,  2(1  od.  I.  308.  T\vi.ss,  in  cdnnectioii  with  tlie  rule  that 
"a  titk'  by  a  lattT  settlement  may  he  net  up  a.irainst  a  title  hy  an  earlier 
settlement,  .  .  .  if  the  earlier  settlement  can  he  shown  to  have  heen 
ahandoned,"  cites  Wolff,  Institutes  <lu  Droit  des  (Jens,  §  eciii,  who  says: 
"It  is  said  that  a  thinjr  is  ahandoned,  if  only  the  owner  (inailre)  doe.s  not 
wish  it  Ion<rer  to  he   his.     .  .     Whence   it  would  seem   that  he  who 

ahandiins  a  tiling  ceases  to  he  the  owner  of  it,  and  that  by  con.-Jequence 
the  thinji  ahandoned  hecomes  a  thing  which  belongs  to  no  one;  hut  so 
long  as  the  owner  lias  no  intention  to  al)andon  his  jiroperty,  he  remains 
the  owner  of  it."      (The  Oregon  Territory,  122.) 

.\s  to  tile  <-ase  of  territory  at  Delagoa  I'.ay,  see  Hall,  Int.  Law,  4th  ed.  122; 
Moore,  Int.  Ar])itrati('ns,  V.  49S4. 

"The  Argentine  (r<)\-ernm('nt  has  rinived  the  long  dormant  ques- 
tion of  the  Falkland  Islands.  Iiy  claiming  from  tlu^  United  States 
indenmity  for  theii"  loss,  attril)uted  to  the  actii^n  of  the  conunander  of 
the  sloop-of-war  Lexington  in  lireaking  u})  a  piratical  colony  on  those 
islands  in  IS.'M.  and  their  subsecpient  occupation  by  (Jreat  Britain.  In 
view  of  the  ample  justification  for  the  act  of  the  Lexington  and  the 
derelict  condition  of  the  islands  before  and  after  their  alleged  occupa- 
tion by  Argentine  colonists,  this  (r()v<'rmneiit  considers  the  claim  as 
wholly  groundless." 

Presi<leiit  Cleveland,  annual  message,  Dec.  S,  lS8o. 

In  1S:51  three  American  schooners,  the  Ilnrrirt,  Snprrlor,  and  Breakwater 
were  seized,  and  their  crews  imprisoned,  wliile  taking  seals  f>n  the  Falk- 
land, or  Malvinas,  Islands.      President  .lackson,  in   his  anmial  message  of 


§  ^^■]  ABANDONMENT.  299 

Dec.  6,  18:^1,  deficriy^efl  the  captors  as  "a  })a!i(l  actiiifr,  as  they  pretend, 
under  the  authority  of  the  ( toveriinient  of  ISiiciios  Avres."  and  recom- 
niended  tlie  adoption  of  measures  'for  providing,'  a  force  ade(|uate  to  the 
complete  protection  of  our  fellow -citizens  tishinj:  and  trading  in  those 
sea.s."  The  captures  were  maile  hy  Luis  Vernet,  actinj;,  by  virtue  of  a 
decree  of  June  10,  1829,  as  political  and  military  governor  of  the  islands, 
to  whidi  the  (rovernment  of  Buenos  Ay  res  claimed  title  as  successor  to 
Spain.  Prior  to  that  time,  and  since  tiie  withdrawal  of  the  British  forces 
in  1774,  the  islands  had  been  unoccupied.  In  I)eceml)er  ]8:>1  Captain 
Duncan,  of  the  l'.  S.  8.  Lfjunyton,  proceeded  from  Buenos  Ayres  U)  the 
i.sland.s,  relea.«ed  the  vessels  and  their  crews,  and  dLspersed  the  Argentine 
colonists.  The  (xovernment  of  Buenos  Ayres  protested,  but  the  United 
States  disputed  its  claim  of  title,  as  well  a.s  it*  right  to  interrupt  the  exer- 
cise of  a  fishery  on  unsettled  coa.sts,  such  as  those  in  (]uestion.  In  Jan- 
uary 18:i3  (ireat  Britain  resumed  pcssescrion  of  the  islands.  (Br.  and 
For.  State  Papers,  XX.  814-411,  1194-1199;  XXII.  18b()-1894. ) 

"Can  there  Ix'  any  doubt  that  when  the  executive  Ijranch  of  the  government, 
which  is  charged  with  our  foreign  relations,  shall  in  its  correspondence 
with  a  foreign  nation  assume  a  fact  in  regard  to  the  sovereignty  of  any 
island  or  country,  it  is  conclusive  on  the  judicial  department?  .  .  .  As 
the  Executive,  in  his  mes.sage,  and  in  his  correspondence  with  the 
government  of  Buenos  Ayres,  has  denied  the  jurisdiction  which  it  has 
as.sumed  to  exercise  over  the  Falkland  Islands,  the  fact  must  be  taken 
and  acted  on  by  this  court  as  thus  asserted  and  maintained."  (Williams 
r.  Suffolk  Ins.  Co.  (18.89),  18  Pet.  415,  420.) 

See  Calvo,  Droit  Int.,  4th  ed.,  I.  417  et  seq. 

As  to  the  Caroline  and  Pelew  Islands,  see  For.  Rel.  1886,  776,  831. 

The  United  States  maintained  that  Navas.sa  Island  in  1857,  when  a 
citizen  of  the  United  States  took  posjsession  of  it  under  the  Guano 
Ishmds  act.  was  ""derelict  and  abandoned." 

Jones  '•.  United  States  (1890),  187  U.  S.  202,  220,  citing  a  letter  of  the  Assistant 
Secretary  of  State  to  Mr.  Clark,  Xov.   17,  1858,  S.  Ex.  Do<-.  87,  86  Cong. 

1  sess. 

In  Februar}'  1895  the  island  of  Trinidad,  h'ing  651  geographical 
miles  off  the  coast  of  Brazil,  was  occupied  ])y  a  British  force  as  a  cable 
stiition.  Brazil  protested  against  the  occupation.  It  was  stated,  on 
the  part  of  Gi'eat  Britfiin,  that  possession  was  first  taken  of  the  island 
by  the  British  Government  in  17(»0;  that  no  evidence  was  then  foinid 
of  Portuguese  possession,  nor  was  any  protest  made  by  Portugal:  that, 
when  possession  was  "resumed"  by  (rreat  Bi'itain.  no  trace  of  tVtreign 
occupation  was  found;  and  that,  if  thmv  had  been  any  intervening 
pos.session,  it  was  to  be  considered  as  having  been  abiindoned. 

Brazil,  on  the  other  hand,  maintained  that  the  island  was  discovered 
by  the  Portuguese  in  15ol:  that  the  British  consequently  gained  no 
title  by  their  naval  officer  touching  there  in  170»»;  that  when,  in  1781, 
Great  Britain,  being  at  war  with  Spain,  occupied  the  island  for  the 
purpose  of  harrassing  Spanish  trade.  Portugal,  at  the  instance  of 
Spain,  protested;   that,  on   August  :i"i.   I7si\   the  British   A(hniralty 


300  sovereignty:  its  acquisition  and  loss.  [§  89. 

ordcMod  it  to  I )e  evacuated;  that  the  Portuguese  Government subse- 
(lueiitly  asserted  its  title  against  the  intrusive  acts  of  British  subjects; 
that  Brazilian  national  vessels  visited  the  island  officially  in  1825, 1831, 
18.")6.  1871,  1884,  and  1894;  that  the  Brazilian  Government  in  1884 
granted  to  one  of  its  citizens  a  concession  to  carry  on  mining  there, 
and  in  1894  took  steps  toward  using  the  island  for  a  penal  colony;  and 
finally,  that  the  island  was  enumerated  among  the  possessions  of  Brazil 
])v  encyclopaedists  and  geographers. 

•'Occu])ation  is  a  legitimate  method  of  acquiring  domination  only 
with  relation  to  things  that  have  no  owner,  res  nullius,  and  such  are 
those  which  are  not  under  the  dominion  of  anyone  else,  either  from 
never  havijig  l)elonged  to  anyone  or  from  having  been  abandoned  by 
their  former  owner. 

••  In  conformity  with  the  rule  of  nemo  suum  jactare  prjesumitur, 
abandonment  is  something  which  is  not  to  be  presumed.  It  depends 
on  the  intention  of  relinquishing,  or  on  the  cessation  of  physical  power 
over  the  thing,  and  nuist  not  be  confounded  with  simple  neglect  or 
desertion.  A  proprietor  may  leave  a  thing  deserted  or  neglected  and 
still  retain  his  ownership.  The  fact  of  legal  possession  does  not  con- 
sist in  actually  holding  a  thing,  but  in  having  it  at  one's  free  disposal. 
The  al)sence  of  the  proprietor,  neglect,  or  desertion  does  not  exclude 
free  disposal,  and  hence  animo  retinetur  possessio. 

"Gains  (Inst.  G.  4,  sec.  154)  teaches  *  *  *  'quoniam  possi- 
demus  animo  solo  (pmm  volunuis  retinere  possessionem.''* 

''■Ne(iue  vero  deseri  locum  aliquem  satis  est,  ut  pro  derelicto 
ha))endus  sit,  sed  manifestis  appareat  indiciis  derelinquendi  atfectio,' 
adds  Miihlenbi'uch.     (Doctrina  pandectarum,  4th  ed.  sec.  237.) 

"  Abandonment  can  only  result  from  the  expressed  manifestation  of 
the  will,  for  the  animus  is  the  possibilit}'  of  repeating  the  first  will  to 
acquire  possession,  and,  as  Savigny  teaches  (sec.  82),  there  is  no  neces- 
sity of  having  constantly  the  consciousness  of  possession.  Abandon- 
ment recjuires  a  new  act  of  the  will  in  a  contrar}"  direction  to  that  of 
the  first  will,  aninuis,  in  contrarium  actus.  '  Pro  derelicto  autem 
hel)etur.  (piod  dominus  ea  mente  adjecerit,  ut  id  rerum  suarum  esse 
nollet,'  in  the  language  of  the  Institute."' 

"When  the  thing  whose  a))andonnient  is  alleged  in  order  to  legit- 
imize occupation  l)elongs  to  the  dominion  of  a  nation,  still  more 
rigorous  becomes  the  necessity  of  causing  the  act  to  rest  on  some 
positive  and  express  manifestation  of  the  will  of  the  owner,  showing 
that  he  does  not  desire  to  contiiuie  in  possession,  for  in  questions  of 
teri'itorial  dominion  al)ondonment  is  not  to  be  presumed.  The  pre- 
sumption  is  not  that  the  thing  is  a  res  nullius.  as  in  the  case  of  the 


"This  citation  seems  to  l>e  inaccurate.     AVonls  conveying:  tlie  meaning  ajjparently 
here  intended  may  l)e  found  in  Gaiu.s'  Inst.,  J^.  IV.  §  inli. 
''  Inst.  Just.,  II.  §  47. 


§  90.]  REVOLUTION.  'MM 

Institute.  *  Insula,  ([ua^  in  inuri  ntitu  est,  (juod  niro  accidit,  ()cc'ui)aiitis 
tit;  nullius  onini  esse  creditur.'" 

"It"  tiio  island  of  Trinidad  was  discovered  by  the  Portuouosc.  whose 
military  occupation  thereof  continued  until  lTl>r);  if  the  facts  arc  his- 
torical (and  the  memory  of  nations  excludes  the  idea  of  their  l>ein<^'- 
unknown);  if  the  Government  by  public  and  positive  acts  has  always 
shown  its  conviction  that  the  island  of  Trinidad  is  national  territory, 
then  the  condition  of  res  nullius,  which  justifies  occupation,  does  not 
exist. 

"Possession  is  lost  corpore  only  when  thi^  ability  to  dispose  of  a 
thin^-  is  rendered  completely  impossible,  after  thedisap])earance  of  the 
status  which  permits  the  owner  to  dispose  of  the  thin^-  possessed. 

"If  Brazil  has  not  displayed  ))y  any  exi)ress  act  the  intention  (von- 
tade)  of  abandoning  the  island,  which  iiad  ])een  adjudicated  to  the 
Brazilian  continent  by  the  act  of  this  country's  acipiirino-  its  political 
independence;  if  there  does  not  exist,  as  Mr.  Phipps  will  a«>ree.  a 
status  preventing-  it  from  disposing  or  making  use  of  the  island  when 
and  as  it  pleases;  if  Brazil  has  preserved  intact,  together  with  its 
dominion,  its  possession  of  that  island,  which  is  not  a  resproderelicto. 
then  its  occupation  in  the  name  of  the  English  Government  is  not  a 
legitimate  means  of  ac(iuiring  dominion. 

"Presenting  these  reflections  to  Mr.  Phipps,  I  ])elieve  that  he  will 
not  decline  to  lay  them  ])efore  the  Government  of  Her  Majesty,  the 
Queen  of  England,  as  a  protest  against  the  occupation  of  the  island  of 
Trinidad,  which  forms  a  part  of  Brazilian  territory,  and  I  am  con- 
vinced that,  after  the  iHMuoval  of  the  mistaken  impression  that  the  said 
island  was  al)andoned  and  consequently  res  nullius,  that  Go\i'rnmcnt 
will  issue  orders  lor  its  disoccupation,  which  will  be  due  iiomage  to 
the  principles  of  justice  and  will  once  more  emphasize  the  nuitual 
desii'eof  the  two  countries,  Brazil  and  England,  to  maintain  unaltered 
the  relations  between  them." 

Senlior  Carlos  de  Carvallio,  Brazilian  iiiin.  of  forciirn  affairs,  to  Mr.  I'lii|>iis, 
British  iiiin.,  July  21,  ISito,  For.  Rcl.  1S<)5,  I.  Oo,  »;»i-t)7. 

"The  friendly  services  of  l\)rtn^'al  were  offered  in  the  settlement  of  tiie  <|iii's- 
tion  .  .  .  ,  and  (ireat  Britain  conceded  in  Auirnst  the  ri;,dits  of  IWazii 
to  the  island."     (Ann.  Kejr.  1896  [398].) 

II.  Rt: VOLUTION. 

The  establishment  of  a  new  sovereignty  as  th(>  result  of  rexolution  is 
illustrated  in  the  case  of  the  United  Provinces  of  the  Nethei-lands.  or 
Dutch  Republic,  whose  independence,  long  after  its  recognition  by 
other  powers,  was  acknowledged  l)y  Spain  l)y  the  treaty  concluded  at 

«Inst.  Just.,  II.  §  22. 


802  sovereignty:  its  acquisition  and  loss.  [k  ^0. 

Muiistoi-  111  January,  IH-tS;  of  the  Swiss  Omton.s.  which  woro  at  length 
admitted  to  representation  in  the  Congress  of  Westphalia;  of  the 
Tnited  States  of  America:'*  of  the  Spanish  American  republics  and 
Brazil;''  of  Belgium;'  of  Greece;''  and  of  Texas.' 

"The  several  States  which  composed  this  Union,  so  far  at  least  as 
regarded  their  municipal  regulations,  became  entitled,  from  the  time 
when  they  declared  themselves  independent,  to  all  the  rights  and 
powers  of  sovereign  States,  and  thev  did  not  derive  them  from  con- 
cessions made  by  the  British  King.  The  treaty  of  peace  contiiins  a 
recognition  of  their  independence,  not  a  grant  of  it.  From  hence  it 
results,  that  the  laws  of  the  several  Stjite  governments  were  the  laws 
of  sovereign  Stiites,  and  as  such  were  o))ligatory  upon  the  people 
of  such  State,  from  the  time  they  were  enacted." 

Cashing,  J.,  delivering  the  opinion  of  the  court,  in  M'llvaine  r.  ('oxe's 
Lessees  (180cS),  4  Cranch,  209,  212;  S.  P.,  Ilareourt  r.  Gaillard,  12  Wheat. 
527;  Henderson  r.  Poindexter's  Lessee,  id.  5o0. 

'''  It  has  never  ))een  admitted  ))v  the  United  States  that  they  acquired 
anything  ])y  way  of  cession  from  Great  Britain  by  that  tivat}^  [of  1783J. 
It  has  ])een  viewed  only  as  a  recognition  of  pre-existing  rights,  and  on 
that  principle  the  soil  and  sovereignty  within  their  acknowledged  limits 
were  as  much  theirs  at  the  declaration  of  independence  as  at  this  hour. 
By  reference  to  the  treaty  it  will  be  foimd  that  it  amounts  to  a  simple 
recognition  of  the  independence  and  the  limits  of  the  United  States, 
without  any  language  purporting  a  cession  or  relinquishment  of  right 
on  the  part  of  Great  Britain.  In  the  last  article  of  the  treat}"  of  Ghent 
will  be  found  a  provision  respecting  grants  of  land  made  in  the  islands 
then  ill  dispute  between  the  two  States,  which  aft'ords  an  illustration 
of  this  doctrine.  By  that  article  a  stipulation  is  made  in  favor  of 
grants  lieforc  the  war,  but  none  for  those  which  were  made  during  the 
war." 

Johnson,  J.,  Ilareourt  '.  (Taillard,  12  Wheaton,  527;  Ilendei-son  r.  Poindexter's 
Lessee,  12  Wheaton,  530;   Lawrence's  Wheaton  (1863),  37,  977. 

Under  the  treatv  with  Great  Britain  of  1783  the  United  States  suc- 
ceeded to  all  the  rights  in  that  i)artof  old  Canada  which  now  forms  the 
Stiite  of  Michigan  that  existed  in  the  King  of  France  prior  to  its  con- 
quest from  the  French  by  the  British  in  17<!<>:  and,  among  those  rights, 
to  that  of  dealing  with  the  seigniorial  estate  of  lands  granted  out  as 
seigniories  by  the  said  king.  aft<'r  a  forfeiture  had  occurred  for 
nonfidtillment  of  the  conditions  of  the  lief. 

I'.  S.  r.  Repentigny,  5  Wallace,  211. 


"Supra,  §  4.  «ld.  560-563. 

''Supra,  §  23  et  seij.  « Supra,  §  33. 

<-'  Wheaton,  Hist,  of  the  Law  of  Nations,  538-555. 


§§  91-92.]  INTERNAL    DEVELOPMENT.  803 

"The  United  States  reg-ard  it  as  an  established  princi))l«' of  i)ul)lic- 
law  and  of  international  right  that  when  a  European  eolonv  in  Aineriea 
becomes  independent  it  siieceeds  to  the  tcM'ritorial  limits  of  the  eolonv 
as  it  stood  in  the  hands  of  the  parent  country." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Dallas.  .Tiily  2t),  lS."i(),  MS.  Inst,  (ireat  Britain, 
XVlf.     1,  11. 

In  a  case  involving  the  power  of  a  certain  intendant  to  make  a  irnint 
of  lands  in  Mexico  in  November.  1821.  th(>  c(mrt  said  that  that  year 
"witnessed  the  separation  of  Mexico  from  the  Kingdom  of  Spain." 
and  referred  to  the  declaration  of  Mexicati  independence  of  Fe))ruary 
24,  1821,  the  treaty  of  Cordoba  of  August  21.  Is-Jl.  which  Sjjain 
afterwards  repudiated,  and  the  surrench'r  of  the  city  of  Mexico  on 
September  27,  1821,  by  which  surrender,  said  the  court,  the  •"declara- 
tion of  independence  was  made  good."  The  provisional  jimta  then 
set  up  pronudgated,  however,  an  order  continuing  in  existence  various 
olhcers.  among  whom  were  the  intendants,  so  that  the  recognition  of 
the  authority  of  the  intendant  in  the  case  in  question,  who  came  within 
the  order,  did  not  neces.sarily  involve  the  determination  of  the  exact 
time  of  the  disappearance  of  the  Spanish  sovereignty  in  Mexico. 

i:iy's  Adm.  r.  United  States,  171  U.  S.  220. 

III.  INTEKXAL  I)EVKL()PMP:XT. 

A  State  may  gain  sovereign  rights  by  internal  develo]>ment.  A 
remarkable  example  of  such  evolution  is  that  of  Japan."  Turkey, 
though  admitted  in  185(3  to  the  advantages  of  the  public  law  and 
sv.stem  of  concert  of  Europe,  contimies  to  exercise  otdy  a  limited 
.sovereignty.''  Various  examples  may  be  found  in  Chapter  111.,  supra, 
of  the  development  of  more  or  less  organized  ccjumuuiities  into  sov- 
ereign states. 

IV.  EFFPX'TS  OF  ('IIAN(;E  (»F  SOVEKEKiXTY. 
1.  On   l>oiNi)AKU>. 

^  1»2. 

"At  the  date  of  the  ratification  of  this  treaty  [  United  States  and 
Spain,  February  22,  isi;>j  the  country  now  cotistituting  Texas 
belonged  to  Mexico,  part  of  the  monarchy  of  Spain.  Suloecjuently, 
in  1824,  Mexico  became  a  separate  independent  powei-.  whereliy  the 

«  Supra,  §  2,  p.  9. 

'^As  to  the  position  <•£  Turkey  ami  the  transai'tioiis  of  ]S.")(),  see  l>iiK.e:ni,  Tlie 
Eastern  (iue.stion  (Xew  York,  1902). 


304  sovekeignty:  its  acquisition  and  loss.  [§  93. 

l)()iin<l:irv  Uuv  dcsio-iiiitcd  in  the  tivaty  of  LSll>  bt'i-ame  the  line  between 
tlio  I'liitod  Stiit(>s  iuul  Mexico."' 

Harlan,  J.,  dcliverin*;  the  opinion  of  tlie  court,  Tnitcd  States  r.  Texas  (1892), 
14."!  r.  S.  ()21,  t).'{:5.  Tlie  statement  as  to  the  date  of  ^Mexican  independ- 
ence was  merely  made  in  the  course  of  a  recital  of  facts  and  did  not  affect 
tln'  merits  of  the  case. 

2.  ( >N   I'rm.ic  Law. 

•'Those  liiws  of  tlie  former  Govei'nnient  which  have  for  their  object 
a  certain  o()vi'rnMiental  public  policy^  of  which  character  are  laws  for 
the  di.s})osition  of  the  public  domain  and  the  oi-antino-  of  (juasi-i)ublic 
franchises,  riohtsand  privih'oes  to  private  individuals  or  corporations, 
ceased  to  have  any  forc(»  or  etl'ect  after  the  sovereionty  of  the  former 
Government  ceased." 

narc<inrt  '.  <iailiiard,  ll'  Wiieat.  .")2;!,  cited  by  <iri,<ry:s,  At.-(ien.,  Sept.  !»,  1SH9,. 
22  Op.  r-,74,  .")77;  Nov.  21,  ISiti),  22  (>i>.  ()27,  (i.'^l. 

''In  case  of  an  uninhahited  country  newly  found  oiu  by  Knglish  subjects, 
all  laws  in  force  in  Kn<jrland  are  in  force  there;  so  it  seemed  to  l)e  agreed. 
.  They  held  that  in  the  case  of  an  intidel  country  their  laws  by 
coiKjuest  do  not  entirely  cease,  but  only  such  as  are  against  the  laws  of 
(tod;  and  that  in  such  cases  where  the  laws  are  I'ejected  or  silent,  thecon- 
•  luered  country  shall  lie  goveined  according  to  the  rule  of  national 
eipiity."      ( I'.lankard  r.  (ial.ly  (  HVXl),  2  Salkeld,  411.) 

"  Wlu're  Englishmen  establish  themselves  in  an  uninhabited  or  barbarous 
country,  they  carry  with  them  not  only  the  laws  but  the  sovereignty 
of  tlu'ir  own  state;  and  those  who  live  amongst  them  and  l)ecome  mem- 
bers of  their  conununity  become  also  ])artakers  of  and  subject  to  the  same 
laws."  (Advocate-General  r.  llanet'  Surnomoyee  Dossee  (1863),  2  Moore 
r.  C.  22. ) 

The  term  "municipal  leg'islation"  cm])races  oidy  such  laws  as  relate 
to  the  internal  afl'airs  of  the  country  and  the  relation  of  the  people  to 
one  another. 

(iriggs,  .\t.-<ien.,  Nov.  21,  ISiti).  22  Op.  t)27.  (i.!!,  citing  Davis  r.  P(^I"  >i  .hiry  of 

("oncordia,  it  How.  2sO-2s;t. 
See,  also,  Richards,  Acting  At.-(ieu..  Oct.  21,  ISltS,  22  Op.  24'-. 

While  the  I'nited  States,  by  the  cession  of  Louisiana,  succeeded  to 
the  soNcreioii  riohts  of  Franci^  and  S[)ain  in  that  province,  this 
succession  did  not  authorize  tlie  (iovei'nnient  to  exercise  prerogatives 
inconsistent  with  the  Constitution. 

New  Orleans  r.  Tnited  States,  10  Pet.  ()()2. 

The  <Ioctrine  '"that  Congress  in  legislating  for  territory  outside  the  boundaries 
of  the  several  States  (if  the  I'ln'on  is  not  boun<l  by  the  limitations  impo.<ed 
by  the  Constitution,''  is  maintained  by  Mr.  Maroon,  law  oHlcer,  Division 
of  Insular  Affairs,  War  Department,  ^Nlagoon's  Keports,  37-120,  121-173. 


§  93.]  EFFECT    ON    PUBLIC    LAW.  805 

It  is  true  that  in  a  treat}'  for  tiie  cession  of  tcrritoi-y.  its  natioual 
character  continues  for  all  commercial  ])urposcs.  ])ut  full  sovereiuiitv 
for  the  exercise  of  it  does  not  pass  to  th(^  nation  to  whicli  it  is  trans- 
ferred until  actual  delivery.  But  it  is  also  true  tiiat  the  exercise  of 
sovereignty  l)y  the  ceding-  country  ceases.  excei)t  for  strictly  municipal 
purposes,  especially  for  granting  lands.  And  for  the  same  reason  in 
both  cases,  because  after  the  treaty  is  made  there  is  not  in  either  the 
union  of  possession  and  the  right  to  the  territory  which  nuist  concur 
to  gi\ej)f'U(im  (J(}iii'nt'niin>  ct  utile.  To  give  that  there  nmst  be  the  /'//.s 
m  rem  and  tho/'^s'  ///  /v,  or  what  is  called  in  the  conunon  law  of  England 
the^^//'/.s'  et  xel^'i iKic  eonjunetht. 

Davis  /■.  CoiK'onlia,  9  Howard,  L'80. 

Conditions  which  are  attached  to  a  grant  l)y  a  prior  sovereign,  and 
which  are  inconsistent  with  the  policy  of  the  Unitinl  States,  will  not  be 
enforced  ))v  the  United  States  after  the  conquest  of  the  territory  con- 
taining the  land  granted. 

United  States  '•.  Vata,  18  Howard,  556. 

""The  0th  article  of  the  treaty  contains  the  following  provision:  'The 
inhabitants  of  the  territories  which  His  Catholic  Majesty  cedes  to 
the  United  States  by  this  treaty  shall  be  incorporated  in  the  Union 
of  the  United  States  as  soon  as  may  be  consistent  with  the  principles 
of  the  Federal  Constitution,  and  admitted  to  the  enjoyment  of  the 
privileges,  rights,  and  inununities  of  the  citizens  of  the  United  States.' 
This  treaty  is'  the  law  of  the  land,  and  admits  the  iidiabitantsof  Florida 
to  the  enjoyment  of  the  privileges,  rights,  and  inununities  of  the 
citizens  of  the  United  States.  Tt  is  uiuiecessary  to  inquire  whether 
this  is  not  their  condition,  independent  of  stipulation.  They  do  not, 
however,  participate  inj)olitical  power;  they  do  not  shares  in  the  (Jov- 
crnment  till  Florida  shall  become  a  State." 

Marshall,  ('.   J.,  Am.    Ins.  Co.  r.  C'anter,    1  Pet.  hA'l,  on  tlic  treaty  between 
the  United  States  and  Spain  of  Feb.  22,  1819. 

A  nation  ac<iuiring  territory,  by  treaty  or  otherwise,  nuist  hold  it 
subject  to  the  constitution  and  laws  of  its  own  govi>rnment.  and  not 
according  to  those  of  the  government  ceding  it. 

It  can  not  be  admitted  that  the  King  of  Spain  could,  by  treaty  or 
otherwi.se,  impart  to  the  United  States  any  of  his  royal  i)rer()gati\  es; 
and  much  less  can  it  l)e  admitted  that  they  have  capacity  to  icccive  or 
power  to  exercise  tluMU.  Every  nation  ac([uii'ing  territory.  l)y  tn^aty 
or  otherwi.se,  must  hold  it  subject  to  the  laws  of  its  own  government, 
and  not  according  to  those  of  the  govermncnt  ceding  it. 
PoUanl  V.  Hajran,  .i  How.  212,  225. 
H.  Doc,  ;").5i :.^t.t 


306  sovereignty:  its  acquisition  and  loss.  [§  93. 

The  rights  and  powers  of  sovereignty  of  a  nation  over  its  territory 
cease  on  the  transfer  of  that  sovereignty  to  another  government  by  a 
cession  of  the  territory.  The  power  to  preserve  peace  and  order  may 
remain  in  the  officers  previously  appointed  by  the  ceding  state  until 
the  actual  presence  of  the  agents  of  the  succeeding  government,  but 
this  does  not  imply  that  sovereign  power  remaiijs  in  the  former  nation. 

I'nited  States  r.  Reynes,  9  Howard,  127;  Davis  r.  Concordia,  id.  280;  United 
States  r.  D'Auterive,  10  Howard,  (>09;  Montault  v.  United  States,  12  id.  47. 

The  War  Department,  by  a  circular  of  Feb.  11,  1899,  authorized  persons  hold- 
ing the  office  of  notary  public  in  territory  sul)ject  to  military  government 
by  the  military  forces  of  the  Unite<l  States  to  continue  to  hold  that  office 
and  perform  its  func-tions.  (Mr.  Adee,  Second  Assist.  Sec.  of  State,  to  Mr. 
Rooker,  Feb.  24,  1899,  235  MS.  Dom.  Let.  181. ) 

By  the  joint  resolution  of  July  7,  1898,  for  the  annexation  of  Hawaii,  all  the 
civil,  judicial,  and  military  powers  exercised  by  the  officers  of  the  exist- 
ing Government  of  the  islands  were  vested  in  such  persons  as  the  President 
should  appoint,  till  Congress  should  provide  a  government  for  the  islands. 

See,  as  to  Porto  Rico,  the  act  of  May  1,  1900. 

The  authority  and  jurisdiction  of  Mexican  officials  in  California  are 
to  be  regarded  as  having  ceased  on  the  7th  of  July.  184<>,  the  political 
department  of  the  (iovernment  of  the  United  States  having  designated 
that  as  the  day  when  the  conquest  of  California  was  completed  and 
the  Mexican  officials  displaced. 

United  States  r.  Yorl)a,  1  Wall.  412.  See  Stearns  /.  United  States,  6  AVall. 
589;  United  States  r.  Pico,  23  How.  321;  More  r.  Steinbach,  127  U.  S.  70. 

By  the  conquest  of  California  by  the  United  States  Mexican  rule 
was  displaced,  and  with  it  the  authority  of  Mexican  officials  to  alienate 
the  public  domain.  Until  Congress  provided  a  government  for  the 
country  it  was  in  charge  of  military  governors,  who,  with  the  aid  of 
subordinate  officers,  exercised  nuniicipal  authority:  but  the  power  to 
grant  land  or  confirm  titles  was  never  vested  in  these  military  govern- 
ors, nor  in  any  person  appointed  by  them. 

Alexander  r.  Roulet,  13  Wallace,  38(5.     See  Mumford  r.  Wardwell,  6  id.  423. 

The  doctrine  '"that  the  laws  of  a  conquered  or  ceded  country,  except 
so  far  as  they  may  affect  the  political  institutions  of  the  new  sovereign, 
remain  in  force  after  the  con()uest  or  cession  till  changed  l)v  him, 
.  .  .  has  no  application  to  laws  authorizing  the  alienation  of  any  por- 
tions of  the  public  domain,  or  to  officers  charged  luider  the  former 
government  with  that  power.  No  proceedings  affecting  the  lights  of 
the  new  sovereign  over  public  property  can  be  taken  except  in  pursu- 
ance of  his  authority  on  the  su))ject.  The  cases  in  the  supreme  court 
of  California  and  in  this  court  which  recognize  as  valid  grants  of  lots 
in  the  pueblo  or  city  of  San  Francisco  })y  alcaldes  appointed  or 
elected  after  the  occupation  of  the  country  by  the  forces  of  the  United 


§  93.]  EFFECT    ON    I'UELlc;    LAW.  H07 

States,  do  not  militate  ag-ain.st  this  view.  Those  oftieers  were  a<'-(Mits 
of  the  puc))lo  or  city,  and  acted  under  its  autliority  in  the  distribution 
of  its  municipal  lands.  They  did  not  a,-,sume  to  alienate  or  atfect  the 
title  to  lands  which  was  in  the  United  States.  Wr/r/,  v.  SulHnni,  S 
California,  165;  White  v.  Moses,  21  Califoi-nia,  ai:  Mrm/uun,  v. 
Bourne,  9  Wall.  592. 

"It  follows  from  what  is  thus  said  that  it  would  he  a  sutlicicnt  answer 
to  the  contention  of  the  defendants  that  the  grant  under  whidi  they 
claim  to  have  acquired  a  perfect  title  conferred  non(\  The  oruntees 
were  not  invested  with  sudi  title,  and  could  not  be  without  an  official 
delivery  of  possession  under  the  Mexican  (Jovernment,  and  such 
delivery  Avas  not  had,  and  could  not  ))e  had,  after  the  cession  of  the 
country,  except  by  American  authorities  acting  under  a  law  of  Con- 
g-rcss.'^ 

More  r  Steinhacli  (1888),  127  U.  S-.  70,  81. 

That  laws  relating  to  the  alienation  of  the  public  doiaain  passs  away  with  the 
tl•an^^l'er  of  .«o\ereignty,  wee  Magoon'w  Reports,  467. 

"It  is  contended  that  the  mere  change  of  sovereignty  rin'oked  all 
authority  to  make  sales  of  the  piil)liclands,  and  United  States  v.  Vallrjo, 
1  Black,  51-1,  is  cited,  in  which  it  was  held  that  the  decrees  of  the 
Spanish  Cortes  of  1S18,  in  relation  to  the  disposition  of  the  crown 
lands,  was  inapplicable  to  the  state  of  things  which  existed  in  Mexico 
after  the  revolution  of  1(S20.  .  .  ,  And  also  More  v.  iStelnhiteh, 
127  r.  S.  T<»,  81.  .  .  .  It  is  doubtless  true  that  a  change  of 
sovereignty  implies  a  revocation  of  the  authority  vested  by  the  })i'ior 
sovereign  in  local  officers  to  dispose  of  the  pu))lic  hinds.  And  yet  we 
think  that  rule  is  not  controllino'  in  this  case,  for  the  new  sovereio^n 
made  an  oi-der  contimiing  the  fimctions  of  the  local  officers,  and  one 
of  those  local  oiHc(M's  making  a  sale  in  accordance  with  the  provisions 
of  the  prior  laws  caused  the  money  received  therefrom  to  be  paid  into 
the  treasury  of  the  new  sovereign,  and  that  soNcreign  never  returned 
thi'  money  thus  received  nor  challenged  the  validity  of  the  sale  thus 
made.'' 

Ely's  AdiH.  r.  United  States  (18*>8),  171  U.  S.  220,  230-1. 

Advised,  that  when  Spain's  sovereignty  Avas  withdrawn  from  Poi'to 
Rico  tlie  Spanish  g()vernor-g(^neral  and  all  other  officers  of  the  Crow  ti 
of  S})ain,  whose  authority  consisted  in  the  exercise  of  Royal  prerog- 
atives delegated  to  them,  ceased  to  exercise  such  authority,  and  that 
the  powers  possessed  hy  them  luuler  the  Royal  deci'ce  of  August  Iti, 
1878,  in  regard  to  the  formation  of  cor})orations  did  not  pass  to  the 
authority  of  the  United  States. 

AFr.  Magoon,  law  oliicer,  Division  <il   Insular  Affairs.  .luuc  14,  ISHit,  .Magoon's 
Kej)S.  490. 


308  sovereignty:  its  acquisition  and  loss.  [§93. 

•'The  French  occupation  of  the  Island  of  Madao-ascar  has  been  fol- 
lowed by  the  incorporation  of  the  territory  into  the  Republic  as  a 
formally  proclaimed  colony.  This  (Toveriimeiit  has  been  assured  of 
the  fullest  extension  to  American  citizens  and  interests  in  that  quarter 
of  all  rights  and  privileges  under  the  treaties  between  the  United 
States  and  France.  The  extniterritorial  jurisdiction  of  our  agents  in 
Madagascar  will  accordingly  l)e  relinciuished  as  fast  as  etiectiv^ely 
replaced  l»y  the  jurisdiction  of  established  French  courts. 

■*An  important  connnerce.  fostered  ))y  treaties  with  the  Hova  Gov- 
ernment, had  been  l)uilt  up  by  American  interests  during  recent  years, 
and  it  remains  to])e  seen  whether  the  natural  advantages  of  that  traffic 
will  outweigh  the  reserved  trade  of  the  colony  with  the  mother  country 
or  enable  it  to  enter  into  successful  competition  with  the  trade  of 
other  countries  which  enjoy  the  rcciiirocal  benefits  of  the  minimum 
customs  tariff  of  P" ranee." 

Report  of  Mr.  Olm-y,  Sw.  of  State,  to  tlie  President,  Dec.  7,  1896,  I-'or.  Rel. 
LS96,  Ixvii. 

"'The  estal)lisinncnt  of  French  sovereigty  and  civil  jurisdiction  over 
the  island  of  Madagascar  puts  an  end  to  the  extraterritorial  rights  of 
the  United  States  in  that  country,  and  to  the  judicial  powers  of  our 
consul  dependent  thereon.  This  changed  condition  is  assumed  to 
have  gone  into  effect  on  the  i6th  of  October,  when,  according  to  the 
statement  of  the  French  r(>sident-general,  the  French  courts  wv>re  to 
have  been  opened  for  bussiness." 

Mr.  Olney,  Sec.  of  State,  to  INIr.  Kiistis,  ainl)assa(lor  to  Fraiiee,  Dee.  10,  1896, 
For.  Rel.  1897,  152,  l-'ill 

The  Freneli  minister  of  theeolonies  iiistructeil  the  Freiieli  resident-general  to 
give  all  faeilities  to  the  foreign  consuls  for  settling  the  ca.ses  brought 
l)efore  their  courts  l)efore  October  16,  1896.      (For.  Rel.  1897,  154.) 

"l  have  the  honor  to  acknowledge  your  note  of  yesterday's  date, 
asking  information  concerning  the  recognition  of  the  consular  officer 
of  your  government  in  Hawaii  by  the  Government  of  the  United 
States. 

"Foreign  consuls  in  the  Hawaiian  Islands  may  exercise  their  func- 
tions under  the  provisional  regime  now  existing  in  Hawaii,  but  in 
consideration  of  the  change  of  government  there,  it  would  be  as  well 
for  the  govermuents  of  such  consuls  to  send  thtMr  new  credentials  at  a 
convenient  time,  upon  which  new  exequaturs  will  be  issued  by  the 
Government  of  the  United  States. 

'•With  regard  to  your  furtiier  incpiiry  touching  the  recognition  of 
consids  in  Puerto  Kico,  and  the  occiqiied  ports  of  Cuba,  1  beg  to  state 
that,  the  tei-ritory  of  Puerto  Kico  being  under  the  militarv  control  of 
the  United  States  until  Congress  shall  make  other  provision,  there 
would  seem  to  l)e  no  objection  to  the  consuls  of  your  Government  con- 
tinuing for  the  present,  to  act  in  their  official  capacity-  under  existing 


§  93-]  EFFECT    ON    PUBLIC    LAW.  309 

exequaturs.     As  to  Cuba,  a  similar  roursc  may  l»o  permitted  foi-  the 
time  beint^."* 

Mr.  Hay,  Sec.  uf  State,  to  Mr.  (Trip,  Swedish  min.,  NoveiulK-r  17,  1898,  MS. 
Notes  to  Swedish  Legation,  ^'IIL  1(H). 

See,  also,  as  to  the  provisional  recognition  of  consuls  in  the  riiilippines,  Mr. 
Hay,  Sec.  of  State,  to  the  Sec.  of  War,  :March  2(),  litOO,  244  MS.  Dom.  F.et.  19. 

Official  recognition  was  accorded  by  the  Ignited  States  to  foreign  consuls  in 
Porto  Rico  upon  receipt  of  their  connni.«sions  addressed  to  the  President 
of  the  I'nited  States,  or  "  to  whom  it  may  concern,"  ami  they  were  mean- 
while permitted  to  act  temporarily  pending  the  receipt  of  their  counuis- 
sions,  if  a  request  was  made  in  the  usual  way  through  the  proper  legation 
at  Wa.«hington.  (Mr.  Hay,  Sec.  of  State,  to  Mr.  .\llen,  (iov.  of  Porto 
Rico,  :\Iay  2:^,  1900,  245  MS.  Dom.  Let.  232.) 

The  dij)lomatic  representatives  at  Washington  of  the  various  governments 
having  consuls  in  the  Philipi)ines  were  requested  to  ascertain  the  wishes 
of  their  governments  as  to  the  formal  recognition  of  such  officers  by  the 
United  States,  they  holding  over  meanwhile  and  being  allowed  to  dis- 
charge their  duties.  (Mr.  Hay,  Sec.  of  State,  to  the  Sec.  of  War,  Jan.  22, 
1901,  250  MS.  Dom.  Let.  341.  ) 

On  the  annexation  of  the  Hawaiian  Islands  ])y  the  United  States 
the  laws  of  Hawaii  for  the  registration  of  vessels  ceased  to  operate, 
and  the  national  character  of  Hawaiian  ves.sels  became  American. 

Griggs,  At. -Gen.,  Sept.  12,  1899,  22  ()]>.  578. 

By  the  act  of  April  12.  ll^oO,  in  relation  to  the  government  of  Porto 
Rico,  the  Commissioner  of  Navigation  was  empowered  to  make  such 
regulations,  subject  to  the  approval  of  the  Secretaiy  of  the  Ti'easurv, 
as  he  might  deem  expedient  for  th(^  nationalization  of  all  ves.sels  owned 
by  the  inhabitants  of  Porto  Rico  on  April  II.  Isttl*.  the  date  of  the 
exchange  of  the  ratifications  of  the  treaty  of  cession,  and  which  con- 
tiiuied  to  t)e  so  owned  up  to  the  time  of  such  nationalization,  and  for 
their  admissi<jn  to  all  the  benefits  of  the  coasting  trade  of  the  Cnited 
States. 

By  the  joint  resolution  of  annexatioti  the  public  property  of  Hawaii, 
including  the  put)lic  lands,  bin-ame  vested  in  the  United  States,  and 
the  officials  of  Hawaii  were  thenceforth  without  power  to  convey  a 
title,  legal  or  e(iuitabl(>,  to  such  lands.  In  this  respect  the  resolution 
is  to  be  considered  as  having  taken  effect  on  .Iidy  7,  IS!)^.  the  day  of 
its  approval  l)y  the  President,  and  not  on  .\ug.  12.  l.s<»s.  [he  day  on 
which  the  ceremonies  of  tln^  foi'inal  transfer  of  ])()ssession  took  place, 

Griggs,  At.-(n'n..  Nov.  21,  1899,  22  Oj).  (527.  S.  )*..  (Iriggs.  Ai.-(.rii.,  Sept.  9, 
1899,  22  Op.  574. 

It  was  advised  that  the  inha])itants  of  the  Hawaiian  Islands,  after 
annexation,  were  not  entithnl  to  the  l)enefitsof  the  Unitinl  States  cop}-- 
right  laws,  in  the  absence  of  attii-mative  legislation  by  Congress, 

Griggs,  At.-Gen.,  Dec.  2,  1898,  22  Op.  268. 


310  sovereignty:  its  acquisition  and  loss.  [§93. 

The  power  to  dispose  permanently  of  the  public  lands  and  property 
in  Porto  Rieo  rest^  in  Congress,  and.  in  the  absence  of  a  statute  con- 
ferring such  power,  can  not  be  exercised  by  the  Executive  Depaii;- 
ments  of  the  Government. 

During  the  military  control  of  Porto  Rico  leave  or  license  mav 
be  granted  an  individual  to  make  temporary  use  of  portions  of  the 
public  domain. 

The  grant  of  a  right  or  privilege  to  exist  in  perpetuity,  or  as  long 
as  the  conditions  of  the  gnint  are  fulfilled,  for  the  erection  of  a  pier 
at  Ponce.  Porto  Pico,  is  beyond  the  power  of  the  Secretary  of  AVar, 
and  ought  not  to  l)e  made. 

Syllal.us,  (irigjrs,  At.-(ien.,  July  2(>,  1899,  22  Oi).  544. 

By  Executive  order  promulgated  by  the  general  commanding  the 
United  States  forces  in  Cuba,  all  grants  and  concessions  of  franchises 
and  similar  rights  were  forl)idden  to  l>e  made  by  any  authority  in  the 
island,  except  upon  the  approval  of  the  Secretary  of  War. 

<irijr<r.-^,  At. -(Jen.,  Marcli  25,  1S99.  22  Up.  408. 

Li  aftii'mation  of  the  policy  declared  by  the  Executive.  Congress, 
by  an  act  of  March  8,  iSiH).  directed  that  no  propei'ty.  franchises,  or 
concessions  of  any  kind  whatsoever  should  l)e  granted  l)y  the  Cnited 
States  or  ))y  any  military  or  other  authority  in  the  ishmd  of  Cuba 
during  the  occupation  thereof  l)v  the  United  States.  While  the 
power  of  Congress  to  control  the  Executive  in  the  matter  was  doubted, 
yet  it  was  advised  that  as  the  act  was  in  harmony  with  the  Executive 
policy,  it  would  Im'  inexi)edient  to  grant  periuission  foi"  the  landing  of 
a  cal>l('  in  Cuba,  especially  as  the  solicited  concession  was  alleged  to 
be  in  violation  of  the  existing  rights  of  another  company. 

Gri^.^'s.  At. -(Jen.,  Manh  25,  1899,  22  0\>.  408. 

On  the  cession  of  territory  hy  one  nation  to  another,  tho.se  internal 
laws  and  regulations  of  the  former  designated  as  numicipal  <-ontiiuie 
in  force  and  operation  until  the  new  sovereign  imposes  different  laws 
and  regulations. 

The  laws  which  are  political  in  their  natuie.  and  pertain  to  the  pre- 
rogatives of  the  former  government,  immediately  cea.se  uj)on  the 
transfer  of  sovereignty. 

Any  inchoate  rights  or  grants  made  by  a  numicipal  body  in  Cuba 
under  Spanish  sovereignty,  which  for  their  completion  re(juire  the 
assent  or  approval  of  the  Ci'own  or  it>  otiiccrs.  in  the  ab.sence  of  such 
as.sent  or  approval  made  prior  to  the  treaty  of  cession,  are  inetiective 
and  incomplete. 

Ill  the  exercise  by  the  United  States  of  the  powers  of  municipal 
iroNcriunent.  it  mav  chancre  or  modifv  the  form  oi*  constitutions  of  the 


§  ^^-J  EFFECT    ON    REVENLTE    LAWS.  311 

municipal  establishment,  and  in  this  exercise  of  sovereignty  ma}-  pro- 
vide the  method,  terms,  and  conditions  under  which  internal  improve- 
ments may  be  carried  on,  or  forbid  them  to  be  carried  on,  although 
inchoate  or  even  completed  contracts  therefor  have  previously  ))een 
entered  into. 

Any  rights  of  Dady  &  Co.,  for  the  construction  of  certain  works  in 
Havana,  if  vested,  are  preserved  by  the  treaty  of  Paris. 

Syllabus,  Griggs,  At. -Gen.,  July  10,  1899,  22  Op.  526. 

"If  Michael  J.  Dady  &  Co.  had,  at  the  time  the  treaty  (^f  Paris  was  signed, 
any  rights  under  their  alleged  contract  which  can  properly  be  called 
vested  rights,  those  rights  are  undoubtedly  preserved  by  the  terms  of  the 
treaty." 

The  continuance  of  military  government  in  the  islands  ceded  by. 
Spain  to  the  Tnited  States,  after  the  exchange  of  the  ratitication  of 
the  treaty  of  peace,  by  which  the  cession  was  made,  was  in  harmony 
with  the  theory  previously  accepted  and  approved  by  the  executive, 
legislative,  and  judicial  branches  of  the  Government  of  the  United 
States. 

Report  of  Mr.  Magoon,  law  officer,  Division  of  Insular  Affairs,  War  Depart- 
ment, Oct.  19,  1899,  Magoon's  Report-^,  11,  19. 

The  views  set  forth  in  this  report  were  approved  by  the  Secretary  of  War, 
and  were  acted  upon  by  the  War  Department  in  the  government  of  the 
islands. 

'S.  Ox  Revexik  Laws. 

On  the  cession  of  Florida  to  the  United  States  the  jurisdiction  and 
authorit3'of  the  former  sovereign  continued  in  full  force  until  possession 
of  the  ceded  territory'  had  actually  passed.  It  follows  that  an  importii- 
tion  of  goods  into  the  Floridas  after  the  cession,  but  previously  to  the 
delivery  of  possession,  was  an  affair  between  the  importer  and  the 
Spanish  Government,  of  which  the  Government  of  the  United  States 
had  no  right  to  complain. 

But  goods  carried  into  a  port  of  Florida  before  the  delivery  of  posses- 
sion, remaining  in  port  on  shipboard  until  after  delivery  and  then 
Vn-ought  into  the  United  States,  having  never  been  entered  in  the  Span- 
ish custom-houses.  Avould  ])e  subject  to  the  revenue  laws  of  the  United 
Stiites. 

1  Op.  48:^,  Wirt,  1821. 

When  Florida  was  ceded  to  the  United  States  and  possession  of  it 
had  actually  been  taken  it  was  held  by  the  Secretary  of  tlie  Treasury, 
whose  opinion  was  sanctioned  by  the  Attorney-(iencral,  that,  under 
our  revenue  laws,  its  ports  must  be  regarded  as  foreign  until  they  were 
established  as  domestic  by  an  act  of  Congress. 
Fleming  r.  Page,  9  Howard,  603. 


312  sovekeignty:  its  acquisition  and  loss.  [§  9^- 

The  mere  fact  that  a  territory  ha.s  been  ceded  by  one  sovereignty  to 
another  does  not  open  it  to  a  free  coniniercial  intercourse  with  the 
world  as  a  matter  of  course  until  the  new  possessor  has  prescribed  by 
legislation  some  terms  upon  which  intercourse  may  be  conducted. 

Cross?'.  Harrison,  18  Howard,  164. 

'"I  understsmd  the  decision  of  the  Supreme  Court  of  the  United  Stjites 
in  the  case  of  ILirrhon  v.  T/v/.s-.s- (16  Howard,  164-202)  to  declare  its 
opinion  that  upon  the  addition  to  the  United  States  of  new  territor3'by 
conquest  and  cession,  the  acts  regulating  foreign  conmierce  attach  to 
and  take  eft'ect  within  such  territory  ipso  facto,  and  without  any  fresh 
act  of  legislation  expressly  giving  such  extension  to  the  pre-existing 
laws.  I  can  see  no  reason  for  a  discrimination  in  this  respect  between 
acts  regulating  foreign  commerce  and  the  laws  regulating  intercourse 
Avith  the  Indian  tril)es.  There  is,  indeed,  a  strong  analogy  in  the  two 
subjects.  The  Indians,  if  not  foreigners,  are  not  citizens,  and  their 
tribes  have  the  character  of  dependent  nations  under  the  protection  of 
this  Government.  As  Chief  Justice  Marshall  remarks,  delivering  the 
opinion  of  the  Supreme  Court  in  Worceder  v.  The  State  of  Georgia 
(6  Peters,  557)  '  the  treaties  and  laws  of  the  United  States  contemplate 
the  Indian  territory  as  completely  separated  from  that  of  the  States, 
and  provide  that  all  intercourse  with  them  shall  be  carried  on  exclu- 
sively by  the  Government  of  the  Union." 

"The  same  clause  of  the  Constitution  invests  Congress  with  power 
'to  regulate  commerce  with  foreign  nations  .  .  .  and  with  the 
Indian  tribes.' 

"The  act  of  June  8o,  1834(4  Stat.  729),  defines  the  'Indian  country  ' 
as,  in  fact,  'all  that  part  of  the  United  States  west  of  the  Mississippi 
and  not  within  the  States  of  Missouri  and  Louisiana,  or  the  Territor}^ 
of  Arkansas.'  This.  })y  a  happy  elasticity  of  expression,  widening  as 
our  domain  widens,  includes  the  territory  ceded  l>y  Russia.'" 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Scliofield,  Jan.  30,  1809,  80  MS.  Dom.  Let.  220. 

When  territory  is  acquired  by  treaty  or  conquest,  or  otherwise,  its 
relation  to  the  nation  ac(|iiiring  it  depends  upon  the  laws  of  that 
nation,  uidess  controlled  by  the  instrunuMit  of  cession. 

In  the  resolution  annexing  the  Hawaiian  Islands  Congress  affirma- 
tively indicated  its  int(Mit  that  such  laws  as  our  tonnage-tax  laws  are 
to  remain  undisturbed  until  it  shall  ]>rovide  a  form  of  government  for 
such  islands,  or  until  the  commission  shall  advise  and  Congress  shall 
enact  legislation  therefor. 

The  fact  that  the  Hawaiian  Islands  have  been  annexed  to  the  United 
States  does  not  relieve  vessels  from  such  ports  from  ])eing  considered 
as  from  foreign  ports  and  as  coming  under  the  laws  governing  tonnage 
tax. 

(iriggs,  At.-Cien.,  .Inly  22,  1898,  22  Op.  \'^0. 


§  94.]  THE    INSliLAR    CASES.  313 

In  territory  held  by  conquest,  the  niilihiry  iiuthorities  in  possession, 
in  the  absence  of  legislation  by  Congress,  may  make  sucli  rules  or 
regulations  and  impose  such  duties  upon  merchandise  imported  into 
the  conquered  territory  as  they  may  deem  wise  and  prudent. 

The  admission  of  merchandise  iiyto  the  ports  of  the  United  States 
from  such  conquered  territory  is  governed  solely  l)y  existing  laws 
passed  l\y  Congress,  and  the  President  has  no  powin-  to  add  to  or 
detract  from  the  force  and  etfect  of  such  laws. 

Merchandise  from  the  island  of  Porto  Rico  introduced  into  the  ports 
of  the  United  States  is  })y  law  requii-ed  to  pay  the  same  duties  that 
would  be  charged  upon  merchandise  imported  from  a  foreign  country, 
and  the  President  has  no  authority'  to  alter  or  modify  the  laws  under 
which  such  duties  are  required  to  be  paid. 

(Triggs,  At. -Gen.,  Aug.  10,  1899,  22  Op.  560. 

In  July.  1898.  Porto  Rico  was  invaded  ])y  the  military  forces  of  the 
The  insular  cases.  United  States  under  (General  Miles. 

August  12  a  protocol  between  the  United  States  and  Spain  was 
signed  at  Washington,  which  provided  for  the  suspension  of  all  hos- 
tilities, the  evacuation  of  Porto  Rico  by  Spain,  and  the  negotiation  of 
a  treaty  of  peace  which  should  include  a  cession  of  the  island. 
(30  Stat.  171:2.) 

October  18  Porto  Rico  was  evacuated  by  the  Spanish  forces. 

December  10  a  treat}'  of  peace,  by  which  the  island  was  ceded  to  the 
United  States,  was  signed  at  Paris. 

February  6,  1899,  the  treaty  was  ratified  l)v  the  President  and  Sen- 
ate; March  19,  by  the  Queen  Regent  of  Spain:  and,  April  II.  the 
ratitications  were  exchanged  at  Washington. 

March  2  an  act  was  passed  ))y  Congress  making  an  appropi'iation  to 
carry  out  the  obligations  of  the  treaty. 

April  12,  1900,  an  act  was  passed,  commoidy  called  the  Foraker 
Act,  to  provide  temporary  revenues  and  a  civil  government  for  Porto 
Rico.  It  took  effect  May  1.  1900.  It  imposed  certain  duties  on  goods 
going  into  Porto  Rico  from  the  I'nited  States,  or  coming  into  the 
United  States  from  Porto  Rico,  ))ut  provided  that  they  should  in  any 
event  cease  on  March  1,  19(i2.  or  sooner  if  the  legislative  assembly  of 
Porto  Rico  should  enact  and  put  into  operation  a  system  of  local  taxa- 
tion to  meet  the  necessities  of  the  insular  government." 

Between  the  invasion  of  Porto  Rico  by  th«'  Ignited  States  forces 
and  the  taking  efi'ect  of  the  Foraker  Act,  duties  were  levied  on  com- 
merce between  the  United  States  and  Porto  Rico  as  follow  s: 

In  Porto  Rico,  from  July  20  to  August  19,  1898.  uiulcr  a  proclama- 
tion  of   General    Miles,   continuing   the   former   Spanish   and    Porto 

"By  a  proclamation  of  July  25,  1901,  President  :\IcKinley  announced  that  .«uch  a 
system  had  been  enacted  and  put  into  operation.  l'>y  the  term.s  of  tlu'  act  of  April 
12,  1900,  all  tariff  duties  a.<  between  the  United  States  and  I'orto  Ricu  rea.«ed  from 
and  after  the  making  of  the  President's  proclamation. 


314  sovereignty:  its  acquisition  and  loss.  [§  94. 

Ricjui  dutios;  from  August  19, 1898.  to  February  1,  1899,  under  a  cus- 
toms tariff  proclaimed  by  the  President;  from  February  1,  1899,  to 
May  1,  1900,  when  the  Foraker  Act  took  effect,  under  an  amended 
tariff  promulgated  January  20.  1899,  by  order  of  the  President. 

In  the  United  States,  down  to  May  1,  19(>0,  duties  were  collected 
under  the  general  tariff  laws. 

I. 

A  suit  was  brought  to  recover  back  duties  paid  in  the  United  States, 
under  protest,  on  importations  of  sugar  from  Porto 
Rico  in  the  autunm  of  1899.  after  the  exchange  of 
the  ratifications  of  the  treaty  of  peace. 

Brown.  J.,  delivering  the  opinion  of  the  court,  said: 

1.  That  the  question  whether  the  duties  were  lawfully  collected 
depended  solely  upon  the  question  Avhether  Porto  Rico  was  then  a 
''  foreign  countr},'-  the  I'^nited  States  tariff'  of  July  24,  1897,  com- 
monly called  the  Dingley  Act,  providing  that  certain  duties  should  be 
collected  on  "all  articles  imported  fi'om  foreign  countries." 

2.  That  a  foreign  country-  was  defined  liy  Chief  Justice  Marshall 
and  Mr.  Justice  Story  as  one  exclusively  Avithin  the  sovereignty  of  a 
foreign  nation,  and  without  the  sovereignty  of  the  United  States." 

3.  That  Porto  Rico,  chded  to  and  exclusively  occupied  and  admin- 
istered by  the  United  States,  seemed  to  l)e  a  domestic  territory ;  but  it 
was  insisted  that  the  island  remained  a  "foreign  countr}-''  under  the 
tariff"  laws  till  embraced  In*  Congress  within  the  general  revenue 
system. 

4.  That  in  United  States  v.  Rice,  4  Wheat.  246,  it  was  held  that  an 
action  would  not  lie  for  duties  on  goods  imported  into  Castine,  Maine, 
during  its  occupation  by  the  British  in  the  war  of  1812,  the  goods  not 
being  liable  to  American  duties  where  imported,  and  no  new  right 
vesting  in  the  United  Suites  on  the  reoccupation  of  the  place. 

.5.  That,  somewhat  conversely,  in  Fleming  v.  Page,  9  How.  603,  it 
was  held  that  duties  could  not  be  recovered  back  which  w'ere  paid 
on  goods  imported  from  Tampico,  Mexico,  when  it  was  temporaril}^ 
occupied  by  the  United  States  during  the  Mexican  war,  it  never  hav- 
ing beeji  ceded  to  the  United  States  and  never  having  ceased  to  be  a 
foivign  country.  This  was  sufficient  for  th(^  decision;  but  Chief  Jus- 
tice Taney,  who  delivered  the  opinion,  proceeded  to  put  the  case  on 
another  ground,  that.  In'  the  uniform  construction  of  the  tariff  laws 
by  the  Treasury  Department,  as  shown  in  the  cases  of  Louisiana  and 
Florida,  no  place  in  a  newly  acfpiired  country  was  recognized  as  a 
domestic  port,  from  which  the  coasting  trade  might  be  carried  on,  till 
Congress  had  passed  an  act  establishing  a  custom-house  there  and 
authorizing  the  appointment  of  a  collector. 


"The  Boat  Eliza,  2  Gall.  4;  Taberr.  United  States,  1  Story,  1;  The  Ship  Adven- 
ture, 1  Brock.  235,  241. 


§  94.]  THE    INSULAR    CASES.  .315 

<).  That  in  Cros.s  v.  Harrison,  lO  How.  Lr.-t.  the  plaintitf,  actin*;-  upon 
the  dictum  in  Fleminjf  r.  Pag:e,  sout^ht  to  recover  ))a(k  duties  paid  to 
the  acting-  collector  at  San  Francisco,  who  was  appointed  hv  the 
military  governor  of  California,  on  goods  import<Hl  fi-oin  foreign 
countries^  between  Febniary  2,  1848,  the  date  of  the  treatv  of  peace 
l)etween  the  United  States  and  Mexico,  and  Novem})er  1:5.  ls4i».  when 
the  collector  appointed  by  the  President,  under  an  act  of  Congress  of 
March  3,  1849,  entered  upon  the  discharge  of  his  functions.  The 
court,  Wayne.  J.,  delivering  the  opinion,  held  that  California,  after 
the  cession,  became  '"instantly  bound  and  privileged  by  the  laws  of 
the  United  States,  as  to  duties  on  imports  and  tonnage;"  and.  while 
citing  the  cases  of  Louisiana  and  Florida  and  ostensibly  taking  a  dif- 
ferent view  of  the  facts  from  that  expressed  in  Fleming  r.  Page, 
distinctly  repudiated,  with  the  apparent  acquiescence  of  Taney,  who 
still  remained  Chief  Justice,  the  doctrine  that  the  port  retained  its 
foreign  character  till  Congress  had  acted.  The  goods,  it  is  true,  were 
hnported  into  San  Francisco  from  foreign  countries,  but  it  was  impos- 
sible to  escape  the  conclusion  that  goods  carried  from  San  Francisco 
to  New  York  after  the  ratification  of  the  treaty  would  not  have  ])een 
considered  as  imported  from  a  foreign  country. 

7.  That  the  practice  of  the  executive  departments,  as  shown  in  the 
cessions  of  Louisiana.  Florida,  Texas,  California,  and  Alaska,  was, 
with  the  single  exception  of  Louisiana,  where,  under  an  order  of  ]Mr. 
Gallatin.  Secretary  of  the  Treasury,  the  prior  duties  were  continued 
till  Congress  acted  in  1804,  strictl}"  in  line  with  the  decision  in  Cross 
V.  Harrison. 

8.  That  the  construction  of  the  legislative  departmcMit  was  shown  in 
the  Foraker  Act.  which  distinguished  between  Porto  Kico  and  foi'eign 
countries,  ))y  enacting  (sec.  -1)  that  the  same  duties  shouM  be  paid  on 
"all  acticles  imported  into  Porto  Rico  from  ports  other  than  those  of 
the  United  States,  which  are  required  by  law  to  he  collected  iqwn 
articles  imported  into  the  United  States  ivowi  foreign  a/mttru'-s." 

1>.  That])y  this  resume  it  appeared  that  since  Mr.  (lallatin's  order 
in  1808,  "there  is  not  a  shred  of  authority,  except  the  dictum  in  Flem- 
ing/•.  Page  (practically  overruled  in  Cross  /•.  Harrison)  foi'  holding 
that  a  district  ci-di^d  t<>  and  in  thr  possession  of  the  Fnited  States 
remains  for  any  purpose  a  foreign  country." 

1<>.  That,  were  the  question  presented  as  an  original  one  the  court 
"would  t)e  impelled  irresistildy  to  the  same  conclusion." 

11.  That  by  the  Constitution  a  treaty  is  a  supreme  law  of  the  land; 
that  one  of  the  ordinary  incidents  of  a  treaty  is  the  cc-sion  of  terri- 
tory;" that,  by  the  treaty  of  Paris,  Porto  Pico  "b.'canK"  tiM-ritory  of 
the  United  States— although  not  an  organized  territory  in  the  tech- 
nical sense  of  the  word;"  and  that  whatever  might  be  the  source  of 


aMarshall,  C.  J.,  in  Am.  Ins.  Co.  v.  Canter,  1  Pet.  511,  542. 


316  sovereignty:  its  acquisition   and  loss.  L§  9^' 

Conofi'oss"  power  to  govern  territory,  it  was  si^ttled  law  that  territory, 
when  oiK-e  acquired  by  treaty,  '*))elont>'s  to  the  rnited  States,  and  is 
subject  to  the  disposition  of  Congress." 

12.  That  the  contention  that  territory  tluis  acquired  "can  remain 
a  foreign  country  under  th(>  taritl  laws"  assumed  either  (1)  that  the 
word  foreign  applied  under  all  changes  to  such  countries  as  were  for- 
eign when  the  law  was  (Miacted,  or  (2)  that  they  remained  foreign  till 
Congress  "has  formally  embraced  them  within  the  customs  union  of 
the  States."  The  first  assumption  was  obviously  untejiable;  while  the 
.second  presupposed  both  '"that  a  country  may  be  domestic  for  one 
purpose  and  foreign  for  another,'"  and  that  such  country,  although 
everything  might  be  done  in  it  which  a  government  can  do  within  its 
own  boundaries,  might  remain  indefinitely,  till  Congress  enacted  other 
wise,  a  foreign  country.  The  Constitution  furnished  no  warrant  for 
such  views;  and  the  court  could  not  actiuiesce  in  the  "assumption  that 
a  territory  may  l)e  at  the  same  time  ])oth  foreign  and  dome.stic." 

13.  That  the  court  could  not  consider  the  provisions  of  the  act  of 
Congress  of  March  24,  11)00,"  applying  for  the  benefit  of  Porto  Rico 
duties 'Collected  in  the  United  States  on  importations  from  the  island 
after  its  evacuation  by  Spain,  as  a  declaration  by  Congress  that  Porto 
Rico  remained  as  to  the  tarifi'  laws  a  foreign  country. 

14.  That  the  court  therefore  held  that,  in  the  autumn  of  1899,  "Porto 
Rico  w^as  not  a  foreign  country-  within  the  meaning  of  the  tarifi*  laws 
but  a  territory  of  the  United  States,"  and  that  the  duties  sued  for 
should  be  refunded;  and  the  judgment  of  the  court  below  was 
reversed. 

McKenna,  »I.  (with  whom  Shiras  and  White.  JJ.,  concurred),  dis- 
sented, maintaining: 

1.  That,  between  the  extreme  views  (1)  that  Porto  Rico,  when  the 
duties  were  levied,  remained  as  nuich  a  foieign  country  as  it  was  before 
the  war  with  Spain,  and  (2)  that  it  was  jis  nuicii  domestic  territory  as 
New  York,  there  were  otlu'i'  relations,  one  of  which  was  occupied  b}' 
the  island,  and  that  for  this  view  there  existed  the  authority  of  the 
organ  of  the  court's  present  opinion,  who.  in  Downes  r.  Pidwell  (infra), 
held,  against  the  dissent  of  the  judges  who  agreed  with  him  in  the 
present  case,  that  Porto  Rico,  though  domestic  territory,  might  be 
legallv  subjected  t.)  tariff  duties. 

2.  That  the  })rincipl(»  on  which  Fleming  r.  Page  w^as  decided,  as 
stated  in  the  opinion  of  Chic^f  .lustice  Taney,  lemained  a  proper  prin- 
ci[)le  for  judicial  application,  and  should  not  be  discarded  as  dictum. 

:^>.  That  (rouverneur  Morris,  who  wrote  the  provision  of  the  Con- 
stitution which  empowers  Congress  "to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territoi'v  or  other  property  of  the 

":n  8tut.  151. 


§94.]  THE    INSULAR    TASKS.  317 

United  States,"  afterwards  declared  that  it  was  intiMided  to  ((Mifer 
power  to  govern  territory  as  "provinces  and  allow  thcin  no  voice  in 
our  councils,"  and  in  his  mind  it  certainly  contemplated  after-ac((nired 
territory.  In  Scott  r.  Sanford.  1!»  How.  :VS.',,  it  was  declared  to  he 
"confined  to  previously  acquired  territory.  This  contlict  of  views  was 
but  an  incident  in  the  evolution  of  oi)inioii.  But  distinctions  ;dwavs 
exi.sted  "between  territory  which  might  l)e  ac(iuired  (whether  by  pur- 
chase or  by  con(piest)  and  that  which  was  within  th(»  acknowledged 
limits  of  the  United  States,  and  also  that  which  might  l»e  ac([uired  bv 
the  establishment  of  a  disputed  lino"  -distinctions  which  were  con- 
spicuous in  the  opinion  of  Mr.  Justice  Johnson,  at  circuit,  in  American 
Insurance  Co.  r.  Canter.  1  Pet.  .511.  Mr,  Wel)ster,  in  his  argument 
of  that  case  before  the  Supreme  Court,  said:  "  What  is  Florida  f  It  is 
no  part  of  the  United  States.  How  can  it  be  (  How  is  it  represented? 
Do  the  laws  of  the  United  States  reach  Florida^  Not  uidess  by  par- 
ticular provision."  And.  responding  to  the  argument,  the  court, 
through  Chief  Justice  Marshall,  decided  that  the  judicial  power  of  the 
United  States,  as  declared  by  the  Constitution,  did  not  extend  to 
Florida. 

4.  That  the  court  in  C'ross  /•.  Hari-ison  did  not  hold  that  the  taritf 
laws  of  the  United  States  l)ecame  iunnediately  operative  in  California 
upon  the  ratification  of  the  treaty  of  peace,  independently  of  the 
exercise  of  the  President's  discretion  in  putting  them  in  force.  On 
the  contrary,  it  held  that  California  remain(Hl,  even  after  the  ratifica- 
tion of  the  treaty,  under  the  government  which  the  President  had  in 
the  exercise  of  belligerent  rights  instituted  during  the  war.  And  as 
it  was  thus  admitted  that  there  Avas.  after  the  cession,  an  interxal  of 
time  during  which  the  laws  of  Congress  did  not  apply,  to  whom  does 
it  belong  to  determine  what  the  duration  of  that  interval  shall  be? 
Clearly  to  the  political,  and  not  to  the  judicial,  department  of  the 
Government.  But,  conceding,  merely  for  the  sake  of  the  argument, 
the  contrary,  the  decision  rested  on  the  provisions  of  the  treaty  of 
peace.  The  statement  of  Mr.  Justice  Wayne  thtit  territory  ceded  to 
the  United  States  becomes  "instantly  bound  and  privileged,"  etc., 
was  immediately  accompanied  by  the  qualification  "as  there  is  nothing 
dift'erently  stipulated  in  the  treaty  in  respect  to  conunerce."  The  ces- 
sion of  California  was  etfected  by  a  definition,  in  the  tiraty.  of  the 
"boundaries  of  the  United  States."  and  it  was  to  this  act  of  incor- 
poration that  Mr.  Justice  Wayne  referred  when  he  said  that  "after 
the  ratification  of  the  treaty,  California  t)ecanu>  a  ])art  of  the  I'nited 
States."  The  treaty  with  Spain,  on  the  contrary,  expres-ly  declared 
that  the  status  of  the  ceded  territory  should  Ur  determined  l»y 
Congress. 

5.  That,  as  to  executive  i)ractice.  if  tiiere  was  one  legal  exception, 
such  as  was  admitted  to  exist  in  thc^  case  of  Louisiana,  it  (h'stroyed  the 


31  s  sovekeignty:  its  acquisition  and  loss.  [§94. 

alloj!ftHl  rule.  Nor  was  the  Louisiana  preeedcnt  inconsistent  with 
Cross  r.  Harrison,  correctly  interpreted.  Even  after  the  admission 
of  Texas  as  a  State,  it  was  deemed  necessary  to  extend  the  laws  of  the 
United  States  to  her."  She  was  an  example,  as  was  Florida,  of  what 
Congress  believed  to  be  necessar}',  and  Oregon  and  Alaska  were  like 
examples. 

t).  That  the  opinion  in  the  case  at  bar  assumed  tiiat  the  cession  of 
Porto  Rico  was  unconditional,  l)ut  that  necessarily  depended  upon  the 
terms  of  the  treaty.  To  set  the  word  "*  foreign''  in  antithesis  to  the 
word  "domestic"  proved  nothing-.  The  ([uestion  was  simply  whether 
a  particular  tariti'  law  applied;  and  to  answer  this  in  the  ailirmative  on 
the  ground  that  by  the  Constitution  all  laws,  and  i)articularly  all  cus- 
toms laws,  apply,  in  spite  of  any  provisions  in  the  treatv  of  cession, 
was  to  i  ntroduce  a  restrictive  principle  fraught  Avith  grave  consequences. 

Mr.  ,Iustice  (Jray  also  dissented,  on  the  ground  that  the  judgment 
of  the  court  api)eared  to  be  "irreconcilable  with  the  unanimous  opin- 
ion of  this  court  in  Fleming  r.  Page,*.)  How.  603,  and  with  the  opinions 
of  the  majority  of  the  justices  in  the  case,  this  day  decided,  of  Djwnes 
f\  Bidwell." 

L)e  Lium  '■.  Di.lwt'll  (May  27,  1901),  iS2  V.  S.  ]. 

ir. 

An  action   was  brought  to  recover  back  duties  paid  under  protest 

on  certain  oranges  imported  at  New  York  from  Porto 

ownes  V.    i  -     yUco  in  Xoveml)er,  1900,  after  the  Foraker  Act  took 
well. 

(Effect. 

^Ir.  flustic(>  Brown,  in  announcing  "the  conclusion  and  judgment "^ 

of  the  court,  said: 

1.  That  it  having  l)een  decided  that  upon  the  ratification  of  the  treaty 
of  peace  Porto  Rico  "ceased  to  be  a  foreign  country,  and  becameaterri ■ 
tory  of  the  Tnited  States."  the  (juestion  remained  whether  it  became  "a 
part  of  the  I'nitrd  Sfr/frs"  within  the  clauses  of  the  Constitution  which 
declare  that  "all  duties,  imposts,  and  excises  shall  ))e  uniform  through- 
out the  F.nited  States,"''  and  that  "  vessels  bound  to  or  from  one  State" 
can  not  "be  ol)liged  to  enter,  clear,  or  pay  duties  in  another;"  or. 
more  ])roadly,  "whether  the  revenue  clauses  of  the  Constitution  extend 
of  their  own  force  to  our  newly  ac([uired  territories." 

2.  That,  neither  in  the  Articles  of  Confedenition.  nor  in  theordinanc(> 
of  ITsT.  nor  In  the  Con.stitution  itsidf,  was  there  anything  from  which 
it  could  be  inferred  that  the  territories  were  considered  a  part  of  the 
United  States.  "The  Constitution  was  created  by  the  people  of  the 
I'n'itrd  Sftifrs,  as  a  union  of  Sf*(fc.'<.  to  be  goverinvl  solely  by  represent- 
atives of  the  Sfafex;-^  and  the  clauses  in  question  are  explained  t)y 
others  which  expressly  relate  to  the  States. 

''9  Stat.  1.  ''Art.  1,  sec.  8. 


§  94.]  THE    INSULAR    CASES.  319 

3.  That  two  provisions  of  the  treaty  ceding  Louisianii  were  speciallv 
attacked  on  constitutional  grounds — (1)  that  for  the  ultimate  incorpora- 
tion of  the  territory  into  the  Tnion.  and  (2)  that  by  which  Fi-ench  and 
Spanish  ships  were  accorded  for  twelve  years  an  exclusive  prefcnvnce 
as  to  duties  in  the  ports  of  the  ceded  territory  over  the  ships  of  other 
foreign  countries.  The  statutes  passed  to  carry  the  treaty  into  effect 
may  be  taken  as  expressing  the  view  of  Congress  that  these  stipula- 
tions were  lawful,  though  discriminations  as  to  duties  eoiild  l>e  sup- 
ported only  on  the  theory  that  ports  of  territories  were  not  \nnts  of 
States  within  the  meaning  of  the  Constitution.  The  view  that  the 
Constitution  did  not  extend  to  them  of  its  own  force  was  exhil)ited  in 
the  legislation  of  Congress  touching  all  the  Territories  carved  out  of 
the  Louisiana  cession.  This  view  is  consistently  recognized  in  the 
legislation  of  Congress.  Stipulations  similar  to  those  in  the  Louisiana 
treaty  were  afterwards  incorporated  into  the  treaty  by  which  Florida 
was  acijuired.  Discriminative  clauses  as  to  duties  may  also  be  found 
in  the  act  annexing  Hawaii,  and  in  the  treaty  of  ])eace  with  Spain." 

4.  That  the  decisions  of  the  Supreme  Court  on  the  (juestion  of  the 
extension  of  the  Constitution  to  the  territories  had  not  been  altogether 
"harmonious;  but  that,  eliminating  expressions  not  necessary  to  the 
case  (as  in  Loughborough  r.  Blake),  the  following  propositions  might 
be  considered  as  esta])lished:  (1)  That  the  District  of  Columl)ia  and  the 
territories  are  not  States  within  the  judicial  clause  of  the  Constitution 
giving  jurisdiction  in  cases  between  citizens  of  different  States;''  (2) 
that  Territories  are  not  States  within  the  meatiing  of  the  Revised  Stat- 
utes, S  709,  permitting  writs  of  error  from  the  Supreme  Court  where 
the  validity  of  a  State  statute  is  drawn  in  question;''  (8)  that  the  Dis- 
trict of  Columbia  and  the  Territories  are  States,  as  that  word  is  used 
in  international  treaties  with  respect  to  the  ownership,  disposition, 
and  inheritance  of  property;''  (4)  that  the  Territories  are  not  within 
the  clause  of  the  Constitution  providing  for  the  creation  of  a  Supreme 
Court  and  such  inferior  courts  as  Congress  may  se(>  tit  to  establish;'' 
(5)  that  the  Constitution  does  not  apply  to  foreign  countries  or  to 
trials  therein  conducted,  and  that  Congress  may  lawfully  pi'ovide  for 
such  trials  before  consular  tribujials  without  a  grand  or  petit  jury:'  (t!) 
that  where  territory  has  once  l)ecome  sul)ject  to  the  Constitution,  as 
the  District  of  Columbia  prior  to  its  cession  by  Maryland  and  Virginia 

«Art.«.  4  and  18. 

'j  Hepburn  /•.  Ellzey,  2  Cr.  44.5;  Barney  >■.  Baltiniore.  t>  Wall.  L'sO:  11(m.c  /.  .lamie- 
son,  166  r.  S.  39.5;  New  Orleans  >:  Winter,  1  Wheat.  !U. 

<Scott  /;.  Jones,  5  How.  .34.3;  Miners'  Bank  *•.  Iowa.  IL'  I  low.  1. 

</Geofroy  v.  Riggs,  133  U.  S.  258. 

''Am.  Ins.  Co.  r.  Canter,  1  Pet.  511;  Benner  -.  Bortir.  U  How.  2.^5;  Clinton  r. 
Englebreeht,  13  Wall.  4.34;  Good  '•.  Martin,  9.5  V.  S.  IK),  9S;  McAllister  i:  United 
States,  141  U.  S.  174. 

/  Ross'  Case,  140  U.  S.  453. 


320  SOVEREIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  94. 

to  the  United  States,  or  where  the  Constitution  has  once  been  formally 
extended  by  Congress  to  territories,  it  is  fixed  irrevocably,  and  neither 
Conji^ress  nor  the  territorial  legislature  can  enact  laws  inconsistent 
with  it.'' 

5.  That  the  power  over  the  territories  is  vested  in  Congress  without 
limitation  is  asserted  in  various  cases.* 

6.  That  the  opinion  of  Chief  Justice  Taney,  in  Dred  Scott  v.  Sanford, 
ID  How.  393,  if  taken  at  its  full  value,  is  decisive  in  favor  of  the  other 
view;  but,  when  he  uttered  his  opinion  on  the  merits,  he  had  already 
disposed  of  the  case  on  the  ground  of  jurisdiction;  and  by  subsequent 
events  the  authority  of  the  case  was  seriously  impaired.  Moreover, 
the  question  which  it  involved,  of  the  power  to  prohil)it  slavery  in  the 
territories,  is  so  different,  in  its  constitutional  and  other  aspects,  from 
that  of  duties,  as  to  be  scarcely  analogous. 

7.  That,  to  sustain  the  power  to*  levy  duties,  it  is  not  necessary  to 
show  that  none  of  the  articles  of  the  Constitution  applies  to  Porto 
Rico;  that  some  prohibitions,  such  as  those  inhibiting  bills  of  attainder 
and  titles  of  nobility,  incapacitate  Congress  to  pass  a  bill  of  that 
descrqjtion;  and  that  (although  the  point  was  only  suggested  and  not 
decided)  a  distinction  might  in  this  respect  be  drawn  between  certain 
"natural  rights,"  enforced  in  the  Constitution  by  prohibitions  against 
interference  with  them,  (such  as  rights  of  religion,  of  individual 
liberty  and  property,  of  free  speech  and  a  free  press,  of  access  to  the 
courts,  of  due  process  of  law  and  the  equal  protection  of  the  laws, 
and  immunities  such  as  are  essential  to  free  government,)  and  what 
may  be  termed  artificial  or  remedial  rights  (such  as  citizenship  and 
the  suffrage,  and  particular  methods  of  procedure). 

8.  That,  in  various  statutes — e.  g.,  act  of  Congress  of  March  27, 
1804,  2  Stat.  298,  and  Rev.  Stats.  §  §  905,  906— and  in  the  Thirteenth 
Amendment  to  the  Constitution,  it  is  implied  "that  there  may  be  ter- 
ritories subject  to  the  jurisdiction  of  the  United  States,  which  are  not 
of  the  United  States." 

9.  That  the  object  of  the  various  constitutional  provisions  requiring 
uniformity  and  forbidding  discriminations  in  taxes  and  duties  through- 
out the  United  States  "was  to  protect  the  States  which  united  in 
forming  the  Constitution  from  discriminations  by  Congress  which 
would  operate  unfairly  or  injuriously  upon  some  States  and  not  equally 
upon  others." ' 

"Loughborough  v.  Blake,  5  Wheat.  317;  Callan  r.  Wilson,  127  U.  S.  540;  Webster 
V.  Reid,  11  How.  437;  Springville  '•.  Thomas,  166  U.  vS.  707;  Am.  Pub.  Co.  v.  Fisher 
166  U.  S.  464;  173  U.  S.  343. 

'>McCullough  r.  Marylan.l,  4  Wheat.  316,  422;  United  States  r.  Gratiot,  14  Pet.  526; 
Mormon  Church  r.  United  States,  136  U.  S.  1.  See,  also,  Rational  Bank  v.  County 
of  Yankton,  101  V.  S.  129;  Murphy  v.  Ramsey,  114  U.  S.  15. 

t'Knowltoii  <•.  Moore,  178  U.  S.  41. 


§  9-i-]  THE    INSULAR    CASP:S.  321 

1»>.  That  the ''practical  interpretation  put  hy  Conoivss  upon  the 
Constitution  has  been  long  continued  and  uniform  to  the  eticct  that 
the  Constitution  is  applicable  to  territories  acijuired  bv  jjurdiast'  or 
conquest  only  when  and  so  far  as  Congress  shall  so  direct." 

11.  That  '•  the  power  to  acquire  territoi-y  by  treaty  implies  not  onlv 
the  power  to  govern  such  territory,  but  to  prescriln^  upon  uhat  terms 
the  United  States  will  receive  its  inhabitants,  and  what  their  status 
shall  be." 

12.  On  these  grounds  the  opinion  was  expressed  that  the  island  of 
Porto  Kico  "is  a  territory  appurtenant  and  belonging  to  the  United 
States,  but  not  a  part  of  the  Ignited  States  within  tiie  revenue  clauses 
of  the  Constitution;  that  the  Foraker  act  is  constitutional,  so  far  as  it 
imposes  duties  upon  imports  from  such  island,  and  that  the  plaintifi' 
can  not  recover  })ack  the  duties  exacted  in  this  case." 

Mr.  .Justice  White,  with  whom  concurred  Justices  Shiras  and 
McKenna,  united  in  the  judgment  announced  by  Mr.  Justice  Brown, 
but  for  reasons  "'  ditl'erent  from,  if  not  in  conflict  with,  those  expressed"" 
b}'  the  latter.  The  grounds  maintained  by  ]Mr.  Justice  White  were 
as  follows:  ^ 

1.  That  it  should  at  the  outset  be  conceded  (1)  that,  as  the  Govern- 
ment of  the  United  States  was  ))orn  of  the  Constitution,  all  its  powers 
must  ])e  derived,  either  expressly  or  l)y  implication,  from  that  instru- 
ment;" {'2)  that  consequently  the  Constitution  "is  everywhere  and  at 
all  times  potential  in  so  far  as  its  provisions  are  applical)le:"''  (H)  that, 
wherever  a  power  is  given  and  a  limitation  imposed  upon  it.  the 
restriction  "operates  upon  and  confines  every  action  on  the  sul)ject 
within  its  constitutional  limits;"'"  (4)  that,  where  the  Constitution 
applies,  its  controlling  interest  can  not  Ite  frustrated  ])V  the  action  of 
any  or  all  of  the  departments  of  the  Ciovernment;  (.'>)  that  the  Consti- 
tution has  conferred  on  Congress  the  right  to  create  such  numicipal 
organizations  as  it  may  deem  best  for  all  the  territories  of  the  United 
States,  l)ut  that,  even  where  no  express  limitation  may  be  ai)plical)le. 
there  may  ])o  restrictions  of  so  fundamental  a  nature  that,  although 
not  expressed  in  words,  they  can  not  be  transgressed;''  (t!)  that  as  Con- 
gress, in  governing  the  territories,  is  subject  to  the  Constitution.  .11 
its  applicable  provisions  are,  as  held  even  by  the  dissenting  judges  in 

"Marlmry  r.  Madison,  1  Cranch,  ITti;  Martin  r.  lluiitt-r,  1  Wlit-at.  :VJi\-  NcwOr- 
leaiis  r.  United  States,  10  IVt.  062,  786;  Geofroy  /•.  \U<^<^>^,  IM"  T.  S.  L'.'>s.  2iii;;  Uiiii.-a 
Stat«-i-  r.  (;etty.«hnr<,'  Klectric  Ky.,  160  U.  S.  068,  079,  and  cases  cited. 

&The  Cityef  I'anama,  101  U.  S.  458,  400;  Fong  Yue  Ting  '.  United  Stai..-,  I4i»  U.  S. 
710,  788. 

cMonongahela  Navigation  Co.  r.  United  States?,  148  U.  S.  :;i-J,  :;.;«i:  Interstate  Com- 
merce Commission  r.  Brimson,  154  U.  S.  447.  47'.i:  United  States  /■.  J..int  Traltic 
Association,  171  U.  S.  57U 

''United  States  '■.  Kagania,  118  U.  S.  875,  878;  Shively  r.  r>.,\vlljy,  152  U.  S.  1,  48. 

H.  Doc.  551 -Ji 


322  sovereignty:  its  acquisition  and  loss.  [§  ^^^ 

the  Drod  Scott  oase,"  controlling  therein;  (7)  that  in  every  case,  when 
a  constitutional  provision  is  invoked,  the  question  is,  not  whether  tho 
Constitution  is  operative,  which  is  self-evident,  but  whether  the  par- 
ticular provision  is  applicable;  (S)  that  the  cluuscs  empowering  Con- 
gress "to  lay  and  collect  taxes,  duties,  imposts,  and  excises,''  and 
requiring  uniformity  throughout  the  United  States,  although  they  do 
not  relate  to  or  restrain  the  power  of  Congress  to  levy  local  taxes  for 
local  purposes  within  the  territories,  restrain  Congress  from  imposing 
duties  on  goods  coming  into  the  United  States  from  a  territory  which 
has  been  incorporated  into  and  forms  a  part  thei'eof/' 

2.  That  the  determination  whether  a  particular  provision  is  applica- 
ble involves,  generally  speaking,  an  inipiirv  into  the  situation  of  the 
territory  and  its  relations  to  the  United  States;  e.  g.,  it  has  been 
held,  even  in  the  case  of  incorporated  territories,  that,  while  the  pro- 
vision as  to  the  life  tenure  of  judges  is  inapplicable,  the  provision  as 
to  common  law  juries  is  operative,''  although  the  latter  provision  has 
been  held  inapplica])le  in  consular  courts/' 

8,  That  a  distinction  exists  between  restrictions  which  regidate  a 
granted  power  and  those  which  withdraw  all  authority,  and  that  the 
"absolute  withdrawals  of  power  which  the  Constitution  has  made  in 
favor  of  human  liberty  are  applica])le  to  every  condition  or  status."* 

■i.  That  the  sole  issue  therefore  was  whether  the  tax  in  cjuestion  was 
levied  in  violation  of  the  Constitution;  and  this  depended  upon  whether 
Porto  Rico  had,  when  the  act  was  passed,  ''been  incorporated  into  and 
become  an  integral  part  of  the  United  States.^' 

5.  That  every  government  which  is  sovereign  within  its  sphere  of 
action  possesses  the  inherent  power  to  accjuiro  territory  In-  discovery, 
treaty,  or  conijuest,  and  "that,  under  the  Constitution,  the  (lovern- 
ment  of  the  Ignited  States,  in  virtue  of  its  sovereignty,  supreme  within 
the  sphere  of  its  delegated  power,  has  the  full  right  to  acquire  terri- 
tory enjoyed  ))y  every  other  sovereign  nation."' 

f'U)  How.  :m,  542,  614. 

''Longfi borough  r.  Rlakc,  5  Wlu-at.  ^17,  o22;  Woodruff  r.  Parhain,  S  Wall.  123, 
133;  Brown  r.  Houston,  114  U.  S.  622,  62S;   Pmrhauk  r.  Tnitod  States,  ISl  IJ.  S.  283. 

'■American  in.s.  Co.  r.  Canter,  1  Pet.  511;  Benner  r.  Porter,  9  How.  235;  Webster  v. 
Keid,  11  How.  437,  460;  Clinton  >:  Englel)recht,  13  Wall.  434;  Reynolds  r.  United 
States,  08  U.  S.  145;  Callan  r.  Wilson,  127  I'.  S.  540;  :\IeAllister  r.  United  States,  141 
U.  S.  174;  Springville  r.  Thomas,  166  V.  S.  707;  Baumann  r.  Ross,  167  U.  S.  548; 
Thompson  /■.  I'tali,  170  U.  S.  343:  Cai)ital  Traction  Co.  r.  Hof,  174  U.  S.  1;  Black  r. 
Jackson,  177  C.  S.  363. 

'I  In  re  Ross,  140  U.  8.  453,  461,  462,  463. 

'^20  Congressional  (Jlobe,  Ai>pen<lix,  272,  281-282;  Stanwood,  History  of  the  Presi- 
dency, 218,  253,  254,  271;  Chicago,  Rock  Island,  &r.,  R.  R.  Co.  r.  McGlinn,  114  U.  S. 
542,  546. 

.'Halleck,  International  I^w,  76,  128,  814;  American  Ins.  Co.  /•.  Canter,  1  Pet.  511; 
United  States  r.  Iluckal^'e,  16  Wall.  414,  434;  Mormon  Church  r.  Tnitd  States,  133 
U.  S.  1 ;  Shively  v.  Bowlby,  152  U.  S.  50;  26  Stat.  1497. 


§  94.]  THE    INSULAR    CASES.  8l>3 

6.  That,  by  the  general  priiieiple.s  of  the  law  of  nations.  ac(|uired 
territory,  in  the  absence  of  an  agreement  to  the  contrary,  will  Itt-ar 
such  relation  to  the  ac({iiiring  governnient  as  may  hv  bv  it  (it'tennin(>fl. 
that  this  power  is  ••at)solutely  inherent  in  and  essential  to  national 
existence."  that  it  ))elongs  to  the  United  States  uiid(>r  the  Constitution, 
and  that  it  may  be  exercised  by  Congress  in  time  of  iM'acc  as  well  as 
by  tlie  military  arm  in  time  of  war." 

7.  That  the  theory  that  the  treaty-making  powin-  can  not  acciuire 
territory  conditionally  is  refuted  by  the  histoi-y  of  the  I'nited  States 
from  the  begin  nmg. 

8.  That,  when  the  Constitution  was  adopted,  the  Cnited  States  con- 
sisted, both  in  the  international  and  the  domestic  sense,  of  States  and 
territories  whose  native  white  inhabitants  were  endowed  with  citizen- 
ship and  possessed  various  common  rights  and  privileges;  that  the 
opinion  which  prevailed  in  the  Louisiana  cessioii  was,  that,  although 
the  treaty  might  stipulate  for  incorporation  and  citizenship  under  the 
Constitution,  such  agreements  were  but  promises,  depending  for  their 
fulfillment  on  the  future  action  of  Congress;  that  a  similar  view  ])re- 
vailed  in  the  acquisition  of  Florida;  that  the  rule  acted  upon  in  the  case 
of  the  Mexican  territory  Avas  that,  where  the  treaty  in  express  terms 
brought  the  territory  within  the  boundary  of  the  I'nited  States  and 
provided  for  incorporation,  and  the  treaty  Avas  expressly  or  implied!}' 
recognized  ))y  Congress,  its  provisions  ought  to  be  given  immediate 
etiect:  that  the  same  rule  was  acted  upon  in  the  case  of  Alaska,  the 
treaty  of  cession  containing,  among  other  tilings,  an  express  provision 
excluding  from  citizenshi})  the  uncivilized  native  ti'ibes;  and  that  the 
Thirteenth  AmendnuMit,  which  speaks  of  "the  UnitcMl  States,  oi-  any 
place  subject  to  their  jurisdiction."  obviously  recognizes  that  tlnMH^ 
mav  l)e  places  subject  to  the  jurisdiction  of  the  Utiited  States  which 
are  not  incorpoi'ated  into  it. 

t>.  That  it  is  indubitaldy  settled  l)y  the  pi-inciples  of  the  law  of 
nations,  by  the  natui'e  of  the  government  created  ]»y  the  Constitution, 
bv  the  express  and  im})lied  })owers  conferred  u})on  that  governnient. 
l)y  the  mode  in  which  those  powers  ha\'e  been  exercised,  and  by  an 
unbroken  line  of  judicial  decisions,  that  the  treaty-making  jjower  can 
not  incorporate  territory  into  the  Cnited  States  without  the  e.\j)ress 
or  implied  assent  of  Congress;  that  it  may  insert  in  a  treaty  conditions 
against  immediate  incorporation,  although,  when  the  treaty  contains 
conditions  favoral)le  to  incorporation,  they  will,  if  the  tr(>aty  li<>  not 
repudiated  by  Congress,  have  the  force  of  a  law  of  the  land  and  t>y 
their  fulfillment  cause  incorporation  to  result. 


ff  Johnson  r.  Mclntof-h,  8  Wheat.  543,  ,59.5;  :Martin  >:  Wa.M.-ll.  Ki  I'cters.  ::t)7,  40!>; 
.Tones  >:  United  States,  i:!7  U.  S.  202,  212;  Shively  '.  r.uwH.y.  l-')2  U.  S.  1.  .50;  Flem- 
ing i:  Page,  9  How.  603;  Cross  '•.  Harrison,  16  Ihiw.  ItH. 


324  SOVKKKKJNTV:    ITS    ACQUISITION    AND    LOSS.  [>?  5^4. 

10.  'riuit  tlu>  treaty  of  Paris  did  not  .stipulate  for  the  incorporation 
of  Porto  Rico.  Imt  expressly  provided  that  the  "eivil  rights  and 
political  status  of  the  native  iidiabitants"  should  he  determined  b}" 
('on<rrcss:  and  that  the  provisions  of  the  act  t)f  Congress,  under  which 
the  dutv  in  <|uestion  was  inipostnl.  manifested- the  intentioti  of  Con- 
gress  that  for  the  j)resent  the  island  shoidd  not  he  incorporated  into 
the  I'nited  States. 

11.  That,  in  (•onse(iuenc(\  while  in  an  international  sense  Porto 
Rico  was  not  a  foreign  country,  it  was  foreign  to  the  United  St^ites  in 
a  domestic  sense,  and,  not  having  ))een  incorporated  into  the  United 
States,  was  •'mendy  a})})ertaining  thereto  as  a  possession.""* 

12.  That,  as  a  necessary  consecjuence,  the  impost  assessed  on  mer- 
chandise going  from  Porto  Rico  into  the  United  States  after  the 
cession  was  within  the  powiM'  of  Uongress.  the  clause  recjuiring 
imposts  to  l)e  uniform  "'throughout  the  United  States"  not  being 
applicable  to  it." 

Ml'.  Justice  (>ray,  concurring  in  the  judgment  of  the  court,  "and 
in  substance  agreeing  with  the  opinion  of  Mr.  Justice  White," 
<)l)serve(l  (1)  that  the  (Jovermnent  of  the  United  States  possessed  the 
power  of  acipiiring  territory  either  by  coiupiest  or  by  treaty;''  (2) 
that,  where  territory  is  ac<piired  by  war.  theie  must  of  necessity  be 
a  '"  transition  ])eriod"  betw(MMi  military  government,  under  the  con- 
trol of  the  President  as  commander  in  chief,  and  civil  government, 
which  "can  oidy  be  put  in  operation  by  the  action  of  the  appro})riate 
political  d(>partment  of  the  (rovernment.  at  such  time  and  in  such 
degree  ;is  that  department  may  determine;"  {>'>}  that,  although  in  such 
case  "ciNil  government  must  take  eti'ect  either  by  the  action  of  the 
ti'eaty-making  power  or  by  that  of  the  Congress,"  the  treaty  of 
(•es>ion  usually  leaves  the  government  and  disposition  of  the  territorj' 
t<»  the  (toveiinnent  of  the  United  States;  (4)  that  this  was  recognized 
in  the  treaty  with  Spain,  which,  besides  declaring  that  "the  civil 
rights  and  political  status  of  the  native  iidiabittuits "  of  the  ceded 
territory  should  be  detei'inined  by  Congress,  also  contained  (Arts.  IV. 
and  XIII.)  pi'ovisions  as  to  duties  which  could  not  be  cari'ied  out  if 
the  United  States  customs  i'egulatit)ns  were  Constitutionally  a})plical)le; 
(.">)  thai,  in  the  al»sence  of  Congressional  legislation,  the  regulation  of 
the  revenue  of  the  coiKpiered  territory,  even  after  the  treaty  of 
cession,  remains  with  the   executive  and  military  authority;  ((J)  that, 

"Mr.  .Fiisticc  Wliiti",  in  tlu>  cunrse  of  liis  opinion,  cited  Ncoly  v.  Henkel,  180 
r.  S.  1(M»,  a.-^  showinj.'  that  ('ul)a  was  not  incorporated  into  the  United  States,  but 
rrinaincd  a  forci^'ii  connfry,  in  spite  of  the  fait,  a.s  he  declared,  that,  in  virtue  of  the 
Anicriiaii  i.ci  npatioii  under  the  treaty  of  peace,  the  sovereignty  of  the  United  States 
extended  i.ver  and  dominated  tlie  island  till  the  leL'islative  dei)artMient  of  the  (iov- 
eriinienl  <>i  the  United  States  should  deterinine  that  the  occupation  should  cease, 

'American  ins.  Uo.  r.  Canter,  1  IVt.  oil,  o4l\ 


§  94.]  THE    INSULAR    CASES.  325 

"so  long  as  Congress  has  not  incorporated  the  territory  into  the 
United  States,"'  it  does  not  l)ecome  domestic  territory  in  the  sense  of 
the  revenue  hiws,  l)ut  the  provisions  of  those  laws  concerning  "foreign 
countries"  remain  applical>le  to  it,  as  was  unanimously  declared  in 
Fleming  /•.  Page.  '.)  How.  603,  017;  (T)  that,  **  if  Congress  is  not 
ready  to  construct  a  complete  government  for  the  conquered  territory, 
it  may  establish  a  temporary  govermnent.  which  is  not  subject  to  all 
the  restrictions  of  the  Constitution;"  (8)  that  such  was  the  effect  of  the 
act  of  April  12.  19(M».  and  that  "the  system  of  duties,  temporarily 
established  by  that  act  during  the  transition  period,  was  within  the 
authority  of  Congress  under  the  Constitution  of  the  United  States." 

Chief  Justice  Fuller,  with  whom  concurred  Justices  Harlan.  Brewer, 
and  Peckham.  dissenting,  maintained  (1)  that  the  uniformity  of  taxa- 
tion required  by  the  Constitution  was  a  ''geographical  uniformity,  and 
is  only  attained  when  the  tax  operates  with  the  same  force  and  effect 
in  every  place  where  the  sul>ject  of  it  is  found;""  {-J)  that  the  territories 
as  well  as  the  District  of  Columbia  are  part  of  the  United  States  for 
the  purposes  of  national  taxation;'^  (3)  that  "the  imposition  of  duties 
on  connnerce  operates  to  regulate  conunerce,  and  is  not  a  matter  of  local 
legislation."  and  that  the  duties  in  question  were  levied  "in  the  exer- 
cise of  the  national  power  to  do  so.  and  subject  to  the  requirement  of  geo- 
graphical uniformity;"'"  (4)  that  the  Government  of  the  United  States 
"is  a  government  of  enumerated  powers,"  and  that  the  prohibitory 
clauses  of  the  Constitution  are  effective  in  the  teri'itories  and  the  Dis- 
trict of  Columbia;''  (.5)  that  in  the  cases  in  whicii  it  was  decided  that 
the  Constitutional  ]:)i-ovision  as  to  judicial  tenure  did  not  apply  to  the 
territories'  it  was  not  licld  that  they  were  not  part  of  the  United 
States  and  the  power  of  Congress  over  them  unlimited,  nor  was  there 
the  least  intimation  to  that  effect;  (♦!)  that,  although  endowed  with 
independent  sovei'eignty  and  with  power  to  ac([uire  territory,  the 
Government  of  the  United  States,  deriving  all  its  powers  from  tliG 
Constitution,  possesses,  as  to  internal  affairs,  no  inherent  sovereign 
power  not  derived  from  that  instrument  or  inconsistent  with  its  letter 
and  spirit,  nor  can  the  power  of  Congress,  to  lay  and  collect  duties  be 
curtailed  by  a  treaty;'  (7)  that,  although  the  inhabitants  of  annexed 


"  Knowlton  r.  Moore,  178  U.  S.  41;  Head  Money  Cases,  112  U.  S.  594. 

'^Loujrlilxjrough  )■.  Blake,  5  Wheat.  'Ml;  McCullocli  r.  [Maryland,  4  Wlieat.  408; 
License  Tax  Cases,  5  Wall.  462;  Knowlton  r.  Moore,  178  C.  8.  41. 

<•  Stouten bu rjjh  r.  Ilenniek,  129  V.  S.  141. 

''Marhury  r.  MadLson,  1  Cranch,  17();  The  Passenger  Cases,  7  IIow.  492;  Cross  v. 
Harrison,  1<)  How.  197;  Dred  Scott  c.  Sanford,  19  How.  :W:{;  Yick  Wo  '•.  Hopkins, 
118  U.  S.  356;  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1;  Callan  r.  Wilson,  127  U.  S. 
550;  Thompson  '•.  I'tah,  170  l'.  S.  ',W.i;  Opinion  of  Judge  Kdnninds,  Cong.  Rec,  56 
Cong.  1  sess.  3507;  Cnited  States  /•.  Morris,  1  Curtis,  50. 

'^ American  Ins.  Co.  r.  Canter,  1  Pet.  51 1 ;  McAllister  /.  I'nited  States.  141  C.  S.  174. 

.^2  Tucker  on  tlx' Constitution,  §§  354,  355,  356;  The  Cherokee  Toliac<..,  11  Wall. 
620;  Ceofrov  r.  Riggs,  133  U.  S.  267. 


32<)  s()vkrp:ignty:  its  acquisition  and  loss.  [§^4. 

tenitorv  arc  iiiiprossed  with  tho  natioiiiiHty  of  the  acquiring  power, 
tlit'v  do  not  necessarily  ac'<iiiire  the  full  status  of  citizens,  and  that  the 
declaiation  that  "'the  civil  rights  and  political  status  of  the  native 
inhabitants"  should  be  detenninod  by  Congress  merely  einl)odied  an 
accepted  principle  of  international  law;  (S)  that  the  question  was  not, 
as  stated  in  the  opinion  of  Mr.  Justice  White,  whether  Porto  Rico  had 
at  the  time  of  the  passage  of  the  act  in  question  been  incorporated 
into  and  become  an  integral  ])art  of  the  United  States,  but  whether 
Congrc^ss.  when  it  had  by  that  act  created  a  civil  government  for 
Porto  Rico,  constituted  its  inhabitants  a  body  politic  and  given  it  a 
governor  and  other  otticers  and  a  legislative  assembly  and  courts,  with 
a  right  of  appeal  to  tiie  Supreme  Court,  could  in  the  same  act  and 
in  the  exercise  of  the  power  of  national  taxation  ''impose  duties  on 
the  commerce  l)etween  Porto  Kico  and  the  States  and  other  territories 
in  contravention  of  the  rule  of  uniformity  qualifying  the  })ower:"  (9) 
tliat  as  the  act  made  Porto  Rico,  whatever  its  situation  before,  an 
organized  Territory  of  the  Fnitinl  States,  and  thus  brought  it  within 
the  clauses  as  to  national  taxation,  the  only  ground  on  which  uniformity 
could  l>e  (hMiied  was  that  the  power  of  Congress  over  conuiierce 
between  the  States  and  any  of  the  territories  was  not  restricted  l)v 
the  Constitution:  (lo)  that  the  logical  result  of  this  doctrine  was  that 
Congress  might  pi'ohibit  connucM'ce  altogether  between  the  States  and 
territories  and  prescribe  one  rule  of  taxation  in  one  territory  and  a 
dirtei-ent  i-ule  in  another:  (11)  that  the  assumption  that  Congress  was 
not  bound  in  the  new  territoi'ies  or  possessions  to  follow  the  rules  of 
taxation  j)resci'il)ed  l)y  the  Constitution  was  inconsistent  with  the 
admission  that  tlu'  fundamental  guarantees  of  life,  liberty,  and  prop- 
eity  a))plie(l  there:  {\'2)  that  consequently  so  nuich  of  the  Porto  Rican 
act  a-  authorized  the  imposition  of  the  duties  in  (juestion  was  invalid. 
Mr.  .Iustic<'  Harlan,  while  concurring  in  thedi.ssenting  opinion  of  the 
Chief  .lustice.  also  maintaituKl  (I)  that  the  Constitution  was  ordained 
not  by  the  States,  but  l>y  the  peoi)le  of  the  Cnited  States:"  (2)  that  Con- 
gress ha>  no  existence  and  can  (^xiM'cise  no  authority  outside  of  the 
( 'on>titution.  and  that  still  less  is  it  true  that  Congress  can  deal  with 
new  territories  just  as  other  nations  hav(^  done  oi"  may  do  with  their 
tei-iitoi'ies:  C.)  that,  by  the  express  provisions  of  the  Constitution,  the 
Constitution  itself  and  laws  and  treaties  made  thereunder  are  the 
supreme  law  of  the  land,  and  that  the  "land"  referred  to  embraced  all 
the  )>eoj)les  and  all  the  territory,  whether  within  or  without  the  States, 
over  which  the  I'nited  States  could  exercise  jurisdiction  or  authority; 
(4)  that  the  prohibition  of  bills  of  attainder,  of  ,.r  post  facto  laws,  and 
of  titlc>  of  nobility  goes  no  more  diicctly  to  the  root  of  the  power  of 

'Miirtiii    '.   i  I  lint. r.  1  Wlu-at.  :!04.H1'4,  :!•_'<;.  :;;il:    .McCullocli  »•.  .Maryland,  4  Wheat. 
:;ii;.  4i):;-4iM;:  CMhriis  /•.  Vir>,'inia,  f>  Wlicat.  L't)4,  41.!. 


§  ^-i:.]  THE    INSULAR    CASES.  327 

Congress  than  does  the  prohibition  of  an}"  duty,  impost,  or  excise  that 
is  not  uniform  throughout  the  United  States;  (5)  that  the  meanino-  of 
the  Constitution  can  not  depend  upon  accidental  circumstances  or  upon 
particuhir  interests  in  our  own  or  foreign  lands;  (6)  that  the  decision 
in  De  Lima  v.  Bidwell,  that  Porto  Rico  was  a  domestic  territory  of  the 
United  States,  was  inconsistent  with  the  view  that  it  was  not  embraced 
by  the  words  "'throughout  the  United  States;-*  (7)  that  Neeley  v. 
Henkle,  180  U.  S.  110,  had  no  bearing  upon  the  pending  question,  since 
it  merely  decided,  in  conformity  with  the  declarations  of  Congress  and 
the  treaty  of  peace  with  Spain,  that  Cuba  was  a  foreign  country  within 
the  meaning,  not  of  the  tarilf  act,  but  of  the  act  of  June  6,  19()0,  81 
Stat.  65G,  providing  for  the  surrender  of  fugitives  from  justice;  (8) 
that  if  Porto  Rico  did  not,  b}'  virtue  of  the  treaty  of  cession  and  the 
appropriation  of  money  to  carry  it  into  effect,  become  a  part  of  the 
United  States,  it  was  "incorporated'''  ])y  the  act  in  question,  which 
provided  a  civil  government  complete  in  its  legislative,  executive,  and 
judicial  departments. 

Downes  v.  Bidwell  (May  27,  1901 ),  182  U.  S.  244. 

III. 

An  action  was  ])rought  to  recover  back  duties  paid  under  protest  at 

San    Juan,    Porto  Rico,   on  several    consignments  of 

°°  ^st^tp  ^^  *     merchandise    imported    into    Porto  Rico   from    New 

York  between  July  26,  1898,  and  May  1,  190(>:  (1) 

From  July  2t!,  1898.  to  August  19,  1898,  under  an  order  of  General 

Miles  continuing  the  former  Spanish  duties;  (2)  from  August  19,  ls98, 

to  February  1,  lN9i».  under  a  tariff'  for  Porto  Rico  proclaimed  by  the 

President  of  the   I'nited  States;  and  (8)  from  February  1.  1899,  to 

May  1,  19(10,  under  an  amended  tariff'  promulgated  Januaiy  20,  1899, 

by  the  President.     The  duties  were  therefore  collected  partly  before 

and  partly  after  the  ratification  of  the  treat}"  of  peace,  but  in  every 

instance  prior  to  the  taking  effect  of  the  Foraker  Act,  Ma}'  1.  1900. 

Mr.  Justice  Brown,  delivering  the  opinion  of  the  court,  held  (i) 
that  the  duties  exacted  prior  to  the  I'atification  of  the  treaty  of  peace 
were  lawfully  collected,"  the  right  to  exact  them  arising  from  the  fact 
that  New  York,  up  to  that  time,  remained  a  foreign  country  with 
respect  to  Porto  Rico;'^  (2)  that  as,  by  the  ratitication  of  the  treaty, 
Porto  Rico  ceased  to  be  a  foreign  country,  and  the  right  to  collect 
duties  at  New  York  under  the  general  tariff'  laws  on  imports  from  the 
island  ceased,  so  the  correlative  right  to  exact  duties  in  Porto  Rico  on 


"Haver  v.  Taker,  9  Wall.  32;  Ilalleck,  International  Law,  11.  444;  Xew  Orleans  r. 
Steani.ship  Co.,  20  Wall.  387,  393;  Thirty  llojii^heads  of  Sn<rar,  9  Crani-li,  191;  Flem- 
ing /'.  Pajie,  9  How.  603;  American  Ins.  Co.  /•.  Canter,  1  I'et.  511;  (Vuhh  r.  Harrison, 
16  How.  1S2. 

''FleminfT  r.  Page,  9  How.  603. 


3"2S  sovekkionty:  its  acquisition  and  loss.  [§  9Jr. 

imports  from  N(>\v  Yoi'k  also  ceased,  tho  spirit  as  well  as  the  letter  of 
tli<'  laws  admittini^"  of  duties  bein<^  levied  only  on  importations  from 
foi-('iufn  <'ounti'i(>s;  (H)  that  this  chanjife  in  the  situation  bound  the  mili- 
tary eommander.  who.  althouofh  lie  mn-essarily  ivtained,  after  the 
ratitiration  of  the  treaty  and  till  further  action  hy  Congress,  the  right 
to  administer  the  government  of  the  territory,  yet  was  not,  in  his 
legislati\t>  capacity,  •'wholly  above  th<^  laws  of  his  own  country;"" 
(i)  conse(|uently.  that  when,  by  the  ratitication  of  the  treaty,  the 
United  States  ceased  to  be  a  foreign  country  with  respect  to  Porto 
Kico.  the  authority  of  the  connnander  in  chief  to  impose  duties  on 
goods  imported  from  the  Ignited  States  ceased,  and  such  goods  were 
entitled  to  five  entry  "until  Congress  otherwise  constitutional!}^ 
directed." 

Mr.  Justic<'  White,  in  a  dissenting  opinion  concurred  in  by  Justices 
(iray.  Sliiras.  and  McKenna.  liesides  recapitulating  the  propositions 
contained  in  the  dissenting  opinion  in  the  De  Lima  case,  maintained 
(1)  that  when  Congress  lays  duties  on  merchandise  coming  from 
•■foreign  countries."  this  means  from  countries  which  are  not  a  part 
of  the  I'nited  States  iritJihi  the  lucanliK/  of  tJw  tdi'^f  hnr.s;  {->)  that,  as 
long  as  Congress  retains  the  ])ower  to  lay  duties  on  merchandise  from 
a  certain  country,  it  must  be  a  foreign  country  in  that  sense;  (3)  that 
as  it  had  Ixmmi  decided,  in  Downes  /•.  Bidwell,  that  Porto  Kico,  after 
the  r.ititication  of  the  treaty  of  cession.  rcMuained  in  a  position  where 
Congress  could  impos(»  a  dutv  on  goods  coming  from  that  island  to  the 
Cnited  States,  it  followed  that  it  remained,  after  such  ratitication,  a 
foreign  country  within  the  meaning  of  the  tariti'  laws,  unless  indeed  it 
could  be  maintained  that  Congress,  although  forl)idden  to  levy  imposts 
on  goods  coniing  from  oiu^  jiart  of  the  United  States  to  another,* 
nevertheless  might,  after  a  country  had  t)y  the  constitutional  force  of 
a  ti-eaty  of  cession  ceased  to  bo  foreign  within  the  meaning  of  those 
laws,  cause  it  to  Ix'come  f(jreign  in  that  sense  by  laying,  in  violation 
of  the  Coiistitutioi).  an  iini)ost  upon  its  products  coming  into  the 
I'nited  States;  (4)  that  even  admitting,  for  the  sake  of  the  argument, 
that  the  treaty  incorjiorated  Porto  Kico  into  the  United  States,  the 
doctrine  tiiat  it  imrnediutely  became  subject  to  the  tariff  laws  was  in 
conflict  with  tlie  provisions  of  the  Constitution  conferring  powers 
upon  Congress  in  relation  to  the  revenue,  since  it  would  deprive  Con- 
gress of  any  oi)portunity  to  adjust  the  laws  to  the  conditions  involved 
ill  or  create(l  by  tin'  anin'xation  either  in  tiie  United  States  or  in  the 
territory  annexed. 

I»M.,l,.y  r.  I'liitcd  States  (May  L'7,  l!»(il).  1S2  l'.  S.  221';  Armstrong  /■.  United 
States  (May  27,  ]<»01  ),  ls2  t".  S.  24:!.  Cite-l.  2:^  ()|>.  At. -(fen.  tJ.SO,  a.s  to 
Tiituila. 


"Je.k.'r '.  .MMiitL'dtiiery,  l:!  H..\v.  -t'.lS;  The  ( irapesliot.  !t  Wall.  129,  V.V.\\  Mitchell 

ilarii]..iiy.  js  i|,,n.  n.-,-.  M,,stvn   r.  Fahriiras,  ( 'owi.er,  iSd;   liaynioiid  /-.Thomas, 
I   V.  S.  712. 

'' Wo.Mlnift  (.  I'arham,  S  Wall.  12:',. 


i  ^^■]  THE    INSULAR    CASES.  829 

IV. 

A  lit)ol  was  tilod  to  recover  spoken  pilotage  at  New  York.  June  25, 

liMM).  on  the  American-])uilt  steamship  /*<'//< (^v  .belonging 

to  a  New  York  corporation,  and  duly  enrolled  and 

licensed  for  the  coasting  trade,  and  then  on  a  voyage  from  San  Juan, 

Porto  Kico,  to  New  York. 

The  following  questions  were  certified  to  the  Supreme  Court: 

1.  Were  Porto  liican  ports,  at  the  date  in  <|uestion,  foreign  ports  in 
the  sense  of  the  New  York  pilotage  statutes? 

2.  AVere  vessels  then  engaged  in  trade  ])etween  Porto  Rican  and 
United  States  ports  engaged  in  the  coasting  trade  in  the  sense  of  those 
statutes? 

3.  Were  steam  vessels  engaged  in  such  trade  coastwise  steam  xessels 
in  the  sense  of  sec.  4444  of  the  Revised  Statutes  of  the  I'nited  States? 

The  court.  Mr.  Justice  Brown  delivering  the  opinion,  answered  the 
second  and  third  ({uestions  in  the  affirmative.  An  answer  to  the  first 
question  thus  became  unnecessary. 

Hum  r.  New  York  A  Porto  Kico  S.  S.  Co.  (May  27,  1901),  1S2  U.  S.  392. 

V. 

Petitions  were  presented  for  a  review  of  two  decisions  of  the  Board 

of  General  Appraisers,  holding  subject  to  dutv  certain 
Goetze  v.  United  it  •  .     i     •      ^i  ■•      *      t.      ^ 

merchandise,  miported,  in  the  one  case   from  Porto 

Rico,  and  in  the  other  from  Honolulu,  in  the  Hawaiian 

Islands.     Mr.  Justice  Brown,  delivering  the  opinion  of  th(^  court,  said: 

'"As  the  sole  (luestion  presented   l)y  the   record   in  these  cases  was 

whether  Porto  Rico  and  the  Hawaiian  Islands  were  foreign  countries 

within  the  meaning  of  the  tiiriti"  laws,  we  must  hold,  for  the  reasons 

stated  in  De  Lima  /•.  Bidwell.  just  decided,  that  the  Board  of  (leneral 

Appraisers  had  no  jurisdiction  of  the  cases." 

Goetze   '■.  rnited  States  (May  27,   1901),   182  U.  .S.  221;  Grossman   r.  United 
States  (May  27,  1901),  1S2  V.  S.  221. 

YI. 

Emil  J.  Pepke,  returning  to  the  United  States  as  a  soldier  from  the 

Philippines,  in  S(^pteml)er.    lsi»l>,   bi'ou"ht  with    him 

The  diamond        ,.  , .  .     .  u  •    u  j-v  i  •      j 

rings.  fourteen  diamond  rings,  which  were  afterwards  seized 

by  the  customs  authorities  for  nonpayment  of  duty. 

The  rings  were  acquired  by  Pcpke  in  the  Phili})pines  after  the  exchange 

of  ratitications  of  the  treaty  of  peace  by  which  the  islands  were  ceded 

to   the  United    States.     \Vere  they  subject  to  duty  as    having    been 

im])orted  fiom  a  foreign  country? 

Fuller,  C.  .1.,  delivering  the  oj)inion  of  the  court,   held  that  this 

(|U('stion  must  be  answered  in   the   negatixf  on  the  strength  of    the 


380  sovereignty:  its  acquisition  and  loss.  [§  ^-i- 

dccisidii  111  De  Liniii  /•.  Bidwell.  the  !ipplicii))ility  of  which  Avas  not 
allcctfd  cither  hy  the  Senate  resohition  of  Fel)ruary  14,  181>i>,  or  hy 
the  existence  of  {irnied  native  resistance  to  the  authority  of  the  United 
States. 

Ml-.  Justice  Brown  delivered  a  oonciirrino-  opinion, 
Justices   (iray.    Shiras.    White,   and    McKenna   dissented    for   the 
reasons  stati'd  by  them  in  their  opinions  in  De  Lima  r.  Bidwell,  Dooley 
r.  rnited  States,  and  Downes  r.  Bidwell. 

l"c.urteoii  Diamoml  Kin^s,  Eiiiil  J.  IVi)ke,  rlaiinant.  r.  I'nited  States  (Dec.  2," 

ivioi  I,  is;;  V.  s.  i:*;. 

Ill  a  rt'iiurt  Id  the  Secretary  of  War,  Xoveinl)er  18,  1901,  Mr.  Magoon,  law 
otlicer,  Division  of  Insular  Affairs,  War  Department,  advised  that  the 
•rovcnnnent  of  the  Philippine  Islands,  instituted  by  the  President  of  the 
rnited  States,  liad  the  i)o\ver  to  rejrulate  commerce  with  the  archipelago, 
and  incidentally  to  impose  import  and  export  tluties.  In  this  report  Mr. 
Mau'oon  maintains  that  the  treaty-making  power  is  not  authorized  to 
establish  the  relations  of  territory  accpiired  by  conquest  or  of  the  inhabit- 
ants thereof  to  the  Tnited  States,  and  that  "  the  territory  of  the  Philippine 
Islands  being  hostile  by  reason  of  the  insurrection  therein,  such  territory 
and  its  inhabitants  arethcreliy  brought  within  the  governing  authority  of 
the  war  powers  of  the  nation,  the  exercise  of  which  said  i)Owers  is  regu- 
lated l)y  the  laws  of  war  and  not  l)y  constitutional  provisions,  legislative 
<-nactments,  or  treaty  stipulations  intended  to  i)rovide  for  the  conditions 
of  i)ea(-e."     (Magoon's  Keports,  210.) 

r.y  the  act  of  March  S,  1902,  "temporarily  to  provide  revenue  for  the  Philip- 
pine Islands,"  provision  was  made  for  the  collection  of  duties  on  articles 
impoited  into  the  I'nited  States  from  the  Philippines,  and  vice  versa. 
See.  also,  the  act  of  July  1,  1902,  relating  to  the  civil  government  of  the 
islan.ls. 

VII. 

l>(>()|ey.  Smith  i!c  Co.  ])rou»'ht  suit  to  recover  duties  paid  under  pro- 
test at  San  duan,  Porto  Rico,  on  ooods  imported  from 
Second  Dooley     ^.^,^^.  ^,^^^.,.  ,^^.^^^^.  ^^.^^.  _, _  ^^,^^^^  ^,^^^  Foraker  Act 

case.  ^  ^  •  .    .  ,  .11 

took  elfect.     The  validity  of  the  act  was  assailed  on 

the  oround   tiiat   it   violatinl  the  constitutional  provision  (Art.  I.,  sec. 

!•)  that    "no  tax  or  (hity  shall  be   laid  on  articles  exported  from  any 

State." 

Mr.  dustice    Brown,  (hdiverino-  tiu^  opinion  of    the  court,  held  that 

tile  word  ••(■xport"  in  this  <  lause   refei-red  only  to  j^oods  exported  to 

a  foreiori  vountry ;"  that  Porto  Rico  was  no  lone'er  a  foreign  country;'' 

that,  while  the  ])lace  at  which  a  duty  was  actually  laid  was   not  neces- 

saiily  (lecisi\-e  as  to   its  Ixdno-  an   export  tax.  yet.  in  determining  the 

nature  of  the  duty,   it  was  important  to  consider  for  whose  benetit  it 

wa>  lc\  ied;  and  that  the  duty  in  ({uestion  was  under  the  Foraker  Act 

in  reality  laid  for  the  beiudit  of  Porto  Rico  and  was  properly  collected. 

'  \V,M»iriift  '.  i'arham,  s  Wall.  12:!:   I'.n.wn    /.  Houston.  114  V.  S.  622;   Kairbank 
'.  Iiiited  Stat.  >.   isj   r.  S.  2s:;:  Muller /■.  P.aldwin.  !,.  R.  9  (.1  P..  4o7. 
'■  l>e  Lima  -.  P.idwell;   Doolev  /•.  rnit<-d  States. 


§  94.]  DIVISION    OF   TERRITORY.  331 

Mr.  Justice  White  delivered  a  concurring-  opinion. 
Chief  Justice  Fuller,  with  whom  concurred  Justices  Harlan.  Brewer, 
and  Peckhani,  dissented. 

Dooley  r.  United  States  (Dec.  2,  1901),  188  U.  S.  151.  Discussions  of  the  ques- 
tions involved  in  the  insular  cases  may  be  found  in  the  follcjwinjr  publica- 
tions: The  Status  of  our  New  Territories,  by  Prof.  C.  C.  Langdell,  Har- 
vard Law  Rev.  (Jan.,  1899),  XII.  .%.5;  The  Constitutional  Qiiestions  inci- 
dent to  the  Acquisition  and  Government  by  the  United  States  of  Island 
Territory,  by  the  Hon.  Simeon  E.  Baldwin,  id.  393;  The  Constitution  and 
New  Territory,  by  Prof.  J.  W.  Burgess,  Political  Science  Quarterly  (.Sept., 
1900),  XV.  381;  The  Law  and  Policy  of  Amiexation,  by  Carman  F.  Ran- 
dolph (Longmans,  Green  &  Co.,  New  York  and  London,  1901 );  The  Insu- 
lar Cases,  by  the  Hon.  Chas.  E.  Littlefield,  }>efore  the  Am.  Bar  Assoc, 
Aug.  22,  1901 ;  The  Supreme  Court  and  the  Insular  Ca.ses,  l)y  Prof.  L.  S. 
Rdwe,  Annals  of  the  Am.  Academy  of  Polit.  and  Social  Science,  Sept., 
1901;  The  Sui^reme  Court  and  the  Insular  Cases,  by  the  Hon.  Simeon  E. 
Baldwin,  Yale  Review,  Aug.,  1901;  The  Insular  Cases,  by  Carman  F. 
Randolph,  Colundjia  I^w  Review  (Nov.,  1901),  I.  436;  The  Porto  Rico 
Tariffs  of  1899-1900,  by  Edward  B.  Whitney,  Yale  Law  Journal,  :\Iay, 
1900;  The  Insular  Decisions  of  December,  1901,  by  Edward  B.  Whitney, 
Colundjia  Law  Review,  Feb.,  1902,  p.  79;  Two  Treaties  of  Paris  and  the 
Supreme  Court,  Ijy  Sidney  Webster  (New  York,  Harpers,  1901,  pj).  1.33); 
Practical  Legal  Ditiiculties  incident  to  the  Transfer  of  Sovereignty,  ]>y 
Frederic  R.  Coudert,  jr.,  being  an  address  delivered  before  the  Academy 
of  Political  Science  at  ColumVjia  University,  May  27,  1902. 

Bv  the  treaty  between  the  United  States  and  the  Sultan  of  Mu.scat, 
then  sovereign  of  Zanzibar,  which  was  concluded  Sept. 
21,  1833,  and  which  was  accepted,  ratified,  and  con- 
tinned  by  the  Sultan  of  Zanzibar  Oct.  2(»,  1S<'.>.  it  was 
provided  that  vessels  of  the  United  States  entering  any  port  within 
the  Sultan's  dominions  should  pay  no  more  than  live  per  cent  duties 
on  the  cargo  landed.  Under  this^  stipulation  it  was  the  custom  to 
import  into  the  island  of  Zanzibar  all  goods  intended  for  the  Sultan's 
East  African  dominions,  and  after  paying  the  duty  there  to  trans- 
ship them  to  the  various  coast  ports,  the  inland  being  used  merely  as 
a  base  of  distribution.  Dec.  22,  189(),  the  German  consul  at  Zanzibar 
notified  the  consul  of  the  United  States  that  from  flan.  1.  1891.  the 
duty  of  five  per  cent  would  be  collected  })y  his  Government  on  the 
coast  now  known  as  the  German  East  African  coast,  which  the  Sultan 
had  then  recently  sold  to  Germany.  At  that  time  the  American  house 
of  Hopes.  Enmierton  &  Co.  held  in  the  city  of  Zanzibar  goods  valued 
at  ^44,74(5.  imported  for  the  coast  in  question,  and  on  which  they  had 
paid  to  the  Zanzibar  customs  the  stipulated  duty.  No  arrangement 
was  made  between  the  German  Government  and  the  Sultan  of  Zanzi- 
bar as  to  goods  so  situated.  The  Governiuent  of  the  I'nited  States 
tcK>k  the  ground  that,  under  the  circumstances,  the  American  mer- 
chants were  entitled  either  to  have  the  merchandi.se,  on  which  the 
duty  had  been  paid,  admitted  free  of  duty  into  the  coast,  for  which  it 
was  actually  imported,  or  else  to  receive  a  drawback  from  the  Sultau 


332  sovereignty:  its  acquisition  and  loss.  [§95. 

to  tho  amount  of  tlio  duties  paid;  and  an  application  was  made  to  the 
(lerman  (rovenunent  for  relief  from  the  exaction  of  the  additional 
duty.  Tiie  (rerman  (xovernment  refused  to  entertain  the  clahn.  The 
( Jovernment  of  the  Tnited  States  continued  to  press  it,  maintaining 
that  it  involved  "a  sul)stantial  hardship  callino-  for  that  equitable 
treatment  which  the  Foreign  OtHce  admits  the  case  should  receive." 
It  was  not  deemed  necessary,  said  the  Ignited  States,  to  consider  the 
question  whether,  hy  tiie  payment  of  the  duty,  the  goods  themselves 
were  invested  with  a  right  of  free  transportation  into  any  part  of  what 
were*  then  the  Sultan's  dominions.  The  duty  was  in  fact  paid  on  the 
goods  for  sale  on  the  coast;  hy  the  entry  of  the  goods  at  Zanzi})ar,  the}- 
wei'e  in  reality  imported  into  the  coast;  but,  the  government  of  the  coast 
having  changed,  a  new  entry  was  demanded  and  a  second  payment  of 
(hity  exacted,  simply  because  the  goverrunent  had  changed.  To  the 
c()!itention  of  the  Foreign  Ofhce  that  notice  should  have  l)een  taken  of 
the  negotiations  for  the  sale  of  the  Sultan's  dominions,  it  was  answered 
that  the  importers  could  not  reasonal)ly  be  required  to  incur  incon- 
venience and  loss  merely  because  negotiations  were  on  foot  of  which 
th(>y  could  not  foresee  either  the  result  oi' the  time  of  termination;  that 
it  seemed  to  be  the  more  just  and  reasonable  view  that  they  had  a  right 
to  continue  to  conduct  their  busii\ess  according  to  methods  which  had  all 
along  l)een  pursued  and  which  had  the  sanction  of  law  and  treaty;  and 
that  th(>  notices  of  Dec.  22,  iSilO,  Avhile  it  might  l)e  considered  as  an 
achnission  that  they  were  entitled  to  be  advised  that  tiiey  would  be 
n>(iuired  to  meet  changes  in  the  course  of  their  ])usiness,  was  so  short 
that  it  constituted  rather  a  notification  that  they  would  l>e  sul)jected  to 
loss  than  an  oj)})()rtunity  to  avoid  it. 

Mr.  I'.laiiic,  Sec.  of  State,  to  Mr.  Phelps,  Feb.  27,  1891,  MS.  Inst.  Germany, 
Will.  417:  Mr.  .\<lee,  .\ctin.u' See.  of  State,  to  Mr.  Phelps,  May  20,1S91, 
id.  "ji'O.     The  <  ieriiian  <  i(i\ criiiucnt  api)ea!'s  to  lia\'e  adhered  to  its  i)Osition. 

4.   On    I'ltiVATK   Law. 

S  '.».■). 

••.\ll  the  laws  which  werc^  in  force  in  Florida  while  a  province  of 
Si)ain.  those  excepted  vvliicli  \v(M-e  ])olitical  in  their  chtiracter,  which 
concerned  the  reliitions  l)et\veen  tiie  people  and  their  sovereign,  re- 
niiiined  in  force  until  altered  by  the  (Government  of  the  United  States. 
Congress  recogni/ed  this  ])rincipl('  by  using  the  words  '  laws  of  the 
Territoi-y  now  in  force  theicin."  No  laws  could  then  have  been  in 
force  but  those  eiiiicfed  by  (he  Spanish  (Jovernment."" 

Marshall,  (".  .1.,  .\merican  Insurance  ( 'o.  r.  Canter,  1   Pet.  .'342. 

In  the  <"ise  of  the  Island  of  (irenada,  rejiorted  under  the  title  of  ("ainplieil  r. 
Hall,  20  St.  Tr.  2:!«t.  .•]22;  ("owii.  204,  2(IS,  it  was  declari'd  hy  J^jrd  Mans- 
lieid  that  "a  country  eon(|Uered  by  the  P>ritish  arms  becomes  a  dominion 
of  the  Kin<r  in  riirlit  of  his  Crown,  and  therefore  necessarily  subject  to 
the  le>_'i...:|ative  power  of  the  I'arliament  of  (ireat  Britain."     It  was  also 


§  05.]  EFFECT    ON    PRIVATE    LAW.  333 

declared  that  the  "laws  of  a  conquered  country  continue  until  they  are  altered 
hi/  the  ront/iiei'or."  The  latter  position  was  approved  by  Lord  Ellenbo- 
rough  in  Picton's  case,  .30  8t.  Tr.  944.  (See  Dana's  Wheaton,  note  169.) 
See,  also.  Craw.  r.  Ramsey,  Vaughan  274;  Cross  ''.  Marrison,  16  How.  164; 
Airhart  /■.  Massieu,  98  V.  S.  491;  ^lagoon's  Reports,  .526. 

In  cases  of  coiKiiiest.  aiuoiig'  ci\'ilizefl  countries,  having  established 
Uiws  of  property',  the  rule  is  that  hiws,  usages,  and  nuinicipal  regula- 
tions in  force  at  the  time  of  the  conquest  remain  in  force  until  changed 
by  the  new  sovereign. 

Pnite<l  States  r.  Power's  Heirs,  11  Howard,  .570;  United  States  /•.  Heirs  of  Ril- 
lieux,  14  id.  1S9;  Leitensdorfer  i:  Webb,  20  id.  176,  affirming  Leitens- 
dorfer  /■.  AVebl),  1  X.  M.  34. 

An  adjudication  as  to  title  to  certain  lands  in  Louisiana,  made  by 
a  Spanish  tribunal  in  that  territory  after  its  cession  to  the  United 
States,  l)ut  l)efore  actual  possession  had  been  surrendered,  the  terri- 
tory being  (U  fado  in  the  po.'^session  of  Spain  and  subject  to  Spanish 
hiws,  was  held  valid  as  the  adjudication  of  a  competent  tribunal  hav- 
ing jurisdiction  of  the  case. 

Keene  v.  McDonough,  8  Peters,  308. 

By  the  law  of  nations  the  rights  and  property  of  the  inhabitants  are 
protected,  even  in  the  case  of  a  conquered  country,  and  held  sacred  and 
inviolable  when  it  is  ceded  by  treaty,  with  or  without  any  stipulation  to 
such  effect;  and  the  laws,  whether  in  writing  or  evidenced  ])y  the  usage 
and  customs  of  the  coniiuered  or  ceded  country,  continue  in  f:)rce  till 
altered  by  the  new  sovereign. 

Strother  v.  Lucas,  12  Peters,  410. 

Si)anish  laws  prevailing  in  Louisiana  before  its  cession,  and  affecting 
titles  to  lands  there,  must  be  judicially  noticed  by  the  coui-t.  Their 
existence  is  not  matter  of  fact  to  be  tried  l)v  a  jury. 

I'nited  States  '.  Turner,  H  Howard,  663;  S.  P.,  Cnited  States  r.  Chaves  089.5), 
1.59  U.  S.  4.52. 

The  general  principle  that  when  political  jurisdiction  and  legislative 
|)OW(M'  over  a  teri'itorv  are  transferred  from  one  sovereign  to  another, 
the  nuinicipal  laws  of  the  territory  continue  in  force  luitil  abrogated  ])y 
the  new  sovereign,  is  applicable  as  to  territory  owned  ])y  the  Lnited 
States,  the  exclusive  jurisdiction  of  which  is  ceded  to  them  })y  a  St.ite 
in  a  manner  not  provided  for  by  the  Constitution,  to  so  nuich  thereof  as 
is  not  used  })y  the  Lnited  States  for  its  forts,  l)uildings.  and  other  need- 
ful pui-poses, 

Chicago  and  Pac.  Railway  Co.  r.  McGlinn,  114  V.  S.  .542,  holding  that  a  law  of 
Kansas,  re(juiring  railways  not  enclo.sed  by  lawful  fences  to  pay  damages 
for  animals  killed  or  wounded  by  their  engines  or  cars,  without  regard  to 
the  question  of  negligence,  remained  in  force  in  the  Fort  Leavenworth 
Military  Reservation  after  the  State  had  ceded  exclusive  jurisdiction  over  it. 


384  s(>vkkkionty:  its  acquisition  and  loss.  [§96. 

Article  44  of  the  ulieii  law  in  force  in  Cuba,  iiiicler  which  the  consul 
of  the  countrv  to  wliich  an  intestate  alicMi  belonc^od  had  the  right  to 
administer  upon  his  estate,  continued  in  force  after  Spain's  relinquish- 
ment of  sovereignty  over  the  island. 

(.riL'trs.  At. -(ten..  April  '2(\  1!»(M».  2.S  ( )i).  it:?;   For.  Ki'l.  litOl,  22(>. 

A  claim  haxinii'  been  made  )>y  an  Knolish  fii'm  by  reason  of  the 
refusal  of  the  municipal  authorities  of  Manila  to  carry  out  an  alleged 
conti'act  for  su])i)lying  certain  lire  a])paratus  to  the  city,  it  was  stated 
that  imi)lied  provision  had  been  mad(>  by  the  military  government  of 
the  Philippines  for  the  j)rotection  of  the  rights  of  the  claimants  under 
the  all(>ged  conti'act  **by  the  continuance  of  the  estal)lished  laws  under 
which  the  contract  was  nuide.  if  at  all.  and  })y  the  establishment  of 
conii)etent  courts  whose  decree  will  b(^  enforced  ])v  the  executive 
departUKMit." 

Mr.    Root.   Sec.   of   War,   to  Mr.    Hay,  Sci.   of  State,   Dec.  6,  1900,  Mf^oori's 
Reps.  411,  412. 

5.    Ox    PlBI.IC    Om.KiATlONS. 

?J  90. 

"No  principle  of  international  law  can  l)e  more  clearh'  estiiblished 
than  this:  That  the  /vV/Z/Av  and  the  ohUf/nttons  of  a  nation  in  regard  to 
otiier  .States  are  independent  of  its  internal  revolutions  of  government. 
It  extends  even  to  the  case  of  conquest.  The  conqueror  who  reduces 
a  nation  to  his  sid)jection  rcM-eives  it  su))ject  to  all  its  engagements  and 
duties  toward  otluM's.  the  fulfillment  of  which  then  ])ecomes  his  own 
duty.  However  fre(juent  the  instances  of  departure  from  this  princi- 
|)le  may  l)e  in  point  of  fact,  it  can  not  with  any  color  of  reason  be 
contested  on  the  ground  of  right." 

Ml.  A' lam.-,  Sec.  of  State,  to  Mr.  Kven  tt,  charge  d'affaircH  to  The  Netlierlands, 
AuLTiisl   l(t.  ISIS.  Am.  State  I'apers,  For.  Rel.  V.  60:i. 

■■  In  thec\-eMt  of  a  state  being  divided  into  two  or  more  independent 
sovereignties,  the  ol>ligations  which  had  iiccrued  to  the  whole  before 
the  (li\  ision  afe  ratably  binding  on  the  ditlerent  parts;  for,  as  Story 
sjiys.  •  the  (li\ision  of  an  enqjire  creates  no  forfeiture  of  previously 
vested  rights  of  property."  And  so.  ^  rvyy/Z/vz/vVy,  where  several  separate 
sttites  are  incorporated  into  one  sovereignty,  the  rights  and  ol)ligations 
that  belonged  to  each  before  the  union  are  binding  upon  the  new  state; 
but.  as  (ieneral  IlallecU  points  out.  of  course  the  ride  nuist  be  modified 
to  >uit  tlit^  nature  of  the  luiion  formed  and  the  cluiracterof  the  act  of 
iiicftrpoiation  in  each  particular  case." 

\l"l\">  Kent     1S7S|,  !«;,  citiiii:  Lawrence's  Wlieatoii  (  iSf;:',),  'yZ,  note  20. 

"The  ojjinion  of  th(>  I'nited  Stiites  heretc^fore  has  been  that  as  the 
foreign  obligations  of  Peru,  incurred  in  good  faith   before  the  war, 


§  96.]  EFFECT    ON    PUBLIC    OBLIGATIONS.  885 

rested  upon  Jind  were  secured  by  the  products  of  her  guano  deposits, 
Chile  was  under  a  moral  obligation  not  to  appropriate  that  security 
without  recognizing"  the  lien  existing  thireon.  This  opinion  was 
frankly  made  known  to  (Jhile,  and  our  l)elief  was  expressed  that  no 
arrangement  would  be  made  ))etween  the  two  countries  l)y  which  the 
al)ility  of  Peru  to  meet  her  honest  engagements  toward  foreigners 
would  l)e  impait'ed  In*  the  direct  act  of  Chile.  This  Government  went 
so  far  as  to  announce  that  it  could  not  be  a  party  as  mediator  or 
directly  lend  its  sanction  to  any  arrangement  which  should  impair 
th«»  power  of  Peru  to  pay  those  debts. 

"  This  attitude  was  taken,  not  because  any  appreciable  portion  of 
the  bonded  debt  is  known  to  ])e  held  b}^  citizens  of  the  United  States, 
nor  because  of  any  purpose  to  officiously  guarantee  the  eventual  rights 
oF  alien  ))ondholders,  but  from  an  intimate  conviction  that  any  settle- 
ment would  be  fraught  with  embarrassment  or  even  peril  to  both 
Chile  and  Peru,  which  ]>y  its  terms  did  not  provide  for  the  payment 
of  the  honest  debt  of  Peru. 

"The  same  considerations  which  led  this  Government  to  refrain 
from  taking  an  active  initiative  in  compelling  a  peace,  would  lead  it 
to  refrain  likewise  from  active  opposition  to  an  engagement  already 
signed. 

"Without  knowing  the  text  of  the  treat}"  provisions  concerning  the 
foreign  debt  of  Peru,  it  is  not  easy  to  particularize  an  instruction  to 
you.  You  will,  however,  abstain  from  any  protest  to  the  Chilean 
Minister  at  Lima  against  the  pending  ratification  of  the  treaty  by 
Chile.  You  will  likewise  abstain  from  any  formulated  pi-otest  to  the 
provisional  government  of  (leneral  Iglesias  against  such  ratification 
by  the  coming  Assembly,  That  Assembly  is  convened  for  the  pur- 
pose, as  is  Ijelieved,  of  permitting  a  free  expression  of  the  will  of  the 
Peruvian  nation,  and  it  would  be  contrary'  to  the  declared  })olicv  of 
this  Government  to  seek  to  influence  its  action  in  the  direction  of  any 
determinate  solution. 

'"At  the  same  time,  it  would  be  the  part  of  frankness  not  to  Avith- 
hold  from  such  influential  Peruvians  as  may  converse  with  you  on  the 
state  of  their  country  the  firm  conviction  that  in  order  to  rend(a"  the 
treaty  satisfactoiy  and  j)eace  permanent,  provision  should  be  made  for 
the  payment  of  the  hon(\st  indebtedness  of  Peru.  If,  as  it  is  supposed, 
the  treaty  lately  signed  commits  Chile  to  a  partial  recognition  of  the 
existing  lien  ))y  a  payment  on  account,  it  remains  for  Peru  to  make 
some  equally  distinct  and  efficacious  provision  for  meeting  the 
remainder.'' 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Plieli)s,  iiiiii.  ti>  rcru,  Dec.  29,  LS88, 
MS.  Inst.  Peru,  XVII.  38,  ?>n. 

See,  also,  Mr.  Frelingfiuysen,  Ser.  of  Stkti',  t<i  Mv.  Ixoustan,  I>i'm-h  inin., 
April  17,  1884,  decliniiifr  to  take  part  in  a  joint  representation  of  the  for- 
eign powers  to  Chile  and  Pern  againh^tthe  provisions  of  the  treaty  of  jieace, 


38()  sovereignty:  its  acquisition  and  loss.  [§  96. 

so  far  as  tlu'v  impaired  jruarantees  given  by  Pern  tu  her  foreign  creditors. 
"The  treaty,"  said  Mr.  FreUnghuysen,  "wa.s  eventually  concludetl  in 
terms  at  variaiiee  with  those  which  the  United  States  had  amicably  coun- 
selled, and  is  now  ratified  Ity  both  Chile  and  Peru.  I  am  not  now  called 
iipdn  to  express  an  oi)ini()n  as  to  whether,  in  the  relations  of  governments, 
a  security  for  a  debt  is  to  l>e  followed  In  ran  through  all  its  vicissitudes  of 
ownership."  (MS.  Notes  to  French  Leg.  IX.  597.) 
In  For.  Rel.  ISSS,  1.  1S2-1S(),  there  is  a  correspondence  between  the  British 
minister  in  Chile  and  the  Chilean  minister  of  foreign  relations  touching 
the  claims  of  Peruvian  creditors  on  the  revenues  of  the  i)r()vince  of  Tara- 
paca,  and  certain  provisittns  of  the  Crace-Anibar  contract  for  the  settle- 
ment <>f  the  Peruvian  debt.  The  Chilean  (lovernment  contended  that  the 
Peruvian  (Jovernmeut  in  attempting  by  the  loan  of  1872  to  mortgage  the 
guano  beils  of  Tara]>aca  exceeded  its  legal  jiowers,  the  acts  inider  which 
the  loan  was  issued  not  granting  the  nece.ssary  authority  for  the  purpose; 
ami  that  the  only  obligations  of  Chile  in  the  {)renuses,  as  successor  in  sov- 
ereignty of  Peru  in  Tarai)aca,  were  those  which  she  voluntarily  a.-sumed 
by  the  <lecree  of  February  9,  1SS2,  giving  to  the  creditors  of  Peru  nO  \>t'r 
cent  of  the  net  proceeds  of  the  sale  of  1,000,000  tons  of  guano,  and  l»y  the 
treaty  of  peace  of  Oct.  '20,  1883,  which  confirmed  (Art.  IV.  )  the  decree  of 
1882,  and  stipulated,  bi-sides,  that,  after  the  sale  of  the  1,000,000  tons, 
Chile  would  continue  to  pay  to  the  Peruvian  creditors  50  per  cent  of  the 
net  proceeds  of  guano  till  the  debt  should  be  extinguished  or  the  deposits 
be  exhau.sted.  (For.  liel.  1883,  731.)  Moreover,  the  Chilean  Govern- 
ment, in  the  course  of  the  correspondence,  declared  that  it  wa.s  "the  right 
of  the  victor  to  become  unconditional  owner  of  a  part  of  the  enemy's  ter- 
ritory" for  war  pu'jMises  and  future  security;  that  the  object  of  the  Peru- 
vian loans  was  the  building  of  railroads  and  other  national  works 
exclusively  in  territory  which  Peru  i)reserved;  and  that  Chile  had  not 
intended,  in  coix-cding  something  to  the  creditors  of  Peru,  who  held  the 
latter's  "mere  promise  of  honor,"  to  acknowledge  any  "pretended 
hyjiothecate  rights." 

Chili,  in  ttikino-  ])oss('s.si()ii.  at  tho  vlosc  of  tho  war  with  Porn,  of  the 
o-iiiino  deposits  l)<'h)iioiiiu-  to  I*(M'ii.  took  tlioni  siil>ject  only  to  .siu'h  lion.s 
as  were  biiulino-  uiidor  Peruvian  law  at  th(>  tinio  of  cession. 

Mr.  I'.ayani,  ,S-c.  of  State,  t.i  Mr.  Cowie,  .lune  15,  1885,  150  :\IS.  I)om.  Let.  1. 

""The  jjfcneral  doctrine  of  intcrnatioiuil  law,  founded  upon  obvious 
princii)les  of  justice,  is.  that  in  case  of  annexation  of  a  state  or  cession 
of  territorv,  the  substituted  sovereijrnty  assumes  the  debts  and  oblioa- 
tions  of  the  al».sor])(>d  state  or  territory — it  takes  the  burdens  with 
the  benetits.  Mr.  Adams,  when  Secretary  of  State,  expressed  the 
principle  thus,  extendino-  it  even  to  the  ca.se  of  acquisition  by  con(juest: 

"'The  con<{ueror  who  re<luces  a  nation  to  his  subjection  receives  it 
sut)j('ct  to  all  its  eno-a<rements  and  duties  toward  others,  the  fulfillment 
of  whicii  then  becomes  his  own  (Uity."  (1  Whart.  Int.  Law  Dit^., 
.sec.  .-).) 

••  The  subject  is  di.scu.ssed  by  Mr.  Ilall  (International  Law,  -ith  ed., 
])!».  1<»4.  I<t5).  and  in  Kivicr  (Principes  dn  Droit  des  Gens,  I.,  pp. 
T"'-T2,  note,  and  authorities  and  instances  citcdj. 


§  i)0.]  EFFECT    ON    PUBLIC    OBLIGATIONS.  337 

"No  fair  excoption  to  this  rule  can  bo  perceived,  unless  expressly 
provided  for  bv  treaty  stipulations  or  the  instrument  of  cession,  when 
the  absorbed  territory'  becomes  an  integral  part  of  the  acquiring  state, 
and  is  altogether  merged  in  it.  .  .   . 

"Where  the  federal  idea  obtains,  this  is  not  so.  .  .  .  If  there  is  a 
distinct  and  independ(Mit  civilized  government,  potent  and  capable 
within  its  territorial  limits,  conducted  by  a  separate  executive,  not 
acting  as  the  mere  representative  by  appointment  of  the  distant  cen- 
tral administration,  I  perceive  no  reason  to  doubt  that  such  govern- 
ment rather  than  the  central  authority  should  respond,  out  of  its  sepa- 
rate assets,  to  any  valid  claims  upon  it,  whether  accruing  in  the  past, 
presently  accruing,  or  to  accrue  in  the  future. 

"There  is  nothing  in  the  Hawaiian  resolution  of  annexation  which 
gives  the  negative  to  this  theory.  ...  In  no  respect,  save  a  tempo- 
rary delay  in  the  process  of  adjustment,  am  I  able  to  see  that  the 
situation  as  to  Hawaii  diti'ers  from  that  just  stated,  and  I  am  hence  of 
the  opinion  that  the  function  of  the  State  Department  with  relation  to 
such  foreign  claims  is  to  receive  them  through  diplomatic  channels, 
and  transmit  them  to  the  government  of  Hawaii  for  adjustment." 

Griggs,  At. -Gen.,  Sept.  20,  1899,  22  Op.  588. 

Thi.'^  opinion  wa.s  given  in  reply  to  a  letter  of  the  Seeretary  of  State,  of  Sept. 
'.i,  1899,  relating  to  certain  claims  against  Hawaii,  arising  prior  to  annexa- 
tion, which  were  afterwards  presented  to  the  Department  of  State  as 
claims  again.st  the  United  States.  The  letter  of  the  Secretary  of  State 
suggested  the  questions  whether  the  claims  were  extinguished  by  the 
annexation,  or  whether  they  had  thereby  assumed  the  character  of  claims 
against  the  United  States.  Both  these  questions  the  Attorney-General, 
as  has  been  seen,  answered  in  the  negative.  The  jjarticular  claims 
referred  to  were  those  mentioned  in  S.  Doc.  116,  55  Cong.  3  sess.  Ill  et 
.'^eq.     See,  also.  Memorandum,  2.39  MS.  Dom.  Let.  109. 

The  .\ttorney-General  declined  to  advise  that  they  be  referred  to  the  Court 
of  Claims. 

As  to  the  jurisdiction  of  the  Court  of  Claims,  see  United  States  r.  New  York, 
160  U.  S.  598,  (315. 

Hall  tinds  in  the  "personality  of  the  state"  the  "key''  to  the  answer 
to  be  given  to  the  question  of  the  relation  of  a  new  state  to  the  "con- 
tract obligations,"  property,  and  privileges  of  the  parent  state.  With 
rights  acquired  and  obligations  contracted  by  the  old  state  in  u  "i)er- 
sonal''  capacity,  the  new  state  has  nothing  to  do.  On  the  other  hand, 
says  Hall,  "rights  possess(>d  in  respect  of  the  lost  territory,  including 
rights  under  treaties  relating  to  cessions  of  territory  and  diMnurcations 
of  boundary,  obligations  contracted  with  reference  to  it  alone,  and 
property  which  is  within  it.  and  which  has  therefore  a  local  character, 
or  which,  though  not  within  it,  belongs  to  state  institutions  localized 
there,  transfer  themselves  to  the  new  state  [)erson."  Likewise,  the 
new  state  "is  not  liable  for  the  general  debt  of  the  parent  state,"  but 

H.  Doc.  551 22 


338  sovereignty:  its  acquisition  and  loss.  [§96. 

•'it  is  .saddled  with  local  obligations,  such  as  that  to  regulate  the  chan- 
nel of  a  liver,  or  to  levy  no  more  than  certain  dues  along  its  course; 
and  local  debts,  whether  they  be  debts  contracted  for  local  objects,  or 
dcl)ts  secured  upon  local  rev^enues,  are  binding  upon  it.   .  .   . 

'*^\'hen  part  of  a  state  is  separated  from  it  by  way  of  cession,  the 
state  itself  is  in  the  same  position  with  respect  to  rights,  obligations, 
and  property  as  in  the  case  of  acquisition  of  independence  by  the  sep- 
arate portion.  To  a  certain  extent  also  the  situation  of  the  separated 
part  is  identical  with  that  which  it  would  possess  in  the  case  of  inde- 
pendence. It  carries  over  to  the  state  which  it  enters  the  local  obliga- 
tions b}'  which  it  would  under  such  circumstances  have  been  bound, 
and  the  local  rights  and  property  which  it  would  have  enjoyed.  In 
other  respects  it  is  ditferently  placed.  In  becoming  incorporated  with 
the  state  to  which  it  is  ceded  it  acquires  a  share  in  all  the  rights  which 
the  former  has  as  a  state  person,  and  it  is  bound  by  the  parallel 
obligations.  ... 

""When  a  state  ceases  to  exist  by  absorption  in  another  state,  the 
latter  in  the  same  way  is  the  inheritor  of  all  local  rights,  obligations, 
and  propertv."' 

Hall,  Int.  Law,  4th  ed.,  96,  97,  98,  104,  105. 

In  a  note,  at  page  9S,  Hall  says:  "The  subject  is  one  upon  which  writers  on 
international  law  are  generally  un.satisfactory.  They  are  incomplete,  and 
they  tend  to  copy  one  another.  Grotius,  for  example,  says  that  if  a  state 
is  split  up  'anything  which  may  have  been  held  in  common  by  the  parts 
separating  from  each  other  must  either  be  administered  in  common  or  be 
ratal)ly  divided;'  De  Jure  Belli  ac  Pacis,  lib.  II.  c.  ix.  §10.  Kent 
(C'onim.  1.  25)  does  little  more  than  paraphrase  this  in  laying  down  that 
'  if  a  state  should  be  divided  in  respect  to  territory,  its  rights  and  obliga- 
tions are  not  impaired;  and  if  they  have  not  been  apportioned  by  special 
agreement,  those  rights  are  to  be  enjoyed,  and  those  obligations  fulfilled, 
by  all  the  parts  in  common.'  Phillimore  quotes  Grotius  and  Kent,  and 
adds,  '  if  a  nation  be  divided  into  various  distinct  societies,  the  obliga- 
tions which  had  accrued  to  the  whole,  before  the  division,  are,  unless 
they  have  been  the  subject  of  a  special  agreement,  ratably  binding  upon 
the  different  parts.'  I.  §  cxxxvii.  It  is  difficult  to  be  sure  whether  thei-e 
writers  only  contemplate  the  rare  case  of  a  state  so  splitting  up  that  the 
original  state  i>erson  is  rei)resented  })y  no  one  of  the  fractions  into  which 
it  is  divided,  or  whether  they  refer  also  to  the  more  common  case  of  the 
lo.«s  of  such  portion  of  the  state  territory  and  population  by  secession 
that  the  continuity  of  the  life  of  the  state  is  not  broken.  If  the  former  is 
their  meaning,  their  doctrine  is  correct  so  far  as  property  and  monetary 
obligations  are  concerned;  if  not,  it  would  be  hard  to  justify  their  lan- 
guage even  to  this  extent.  No  doubt  the  debt  of  a  state  from  which 
another  separates  it.^elf  ought  generally  to  l)e  divided  between  the  two 
proportionately  to  their  resi)ective  resources  as  a  matter  of  justice  to  the 
creditors,  because  it  is  .seldom  that  the  value  of  their  security  is  not 
affected  l)y  a  diminution  of  the  state  indebted  to  them;  but  the  obligation 
is  a  moral,  not  a  legal  one.  .  .  .  The  true  rule  is  recognized  by  Hal  leek 
(I.  76),  who  distinguishes  the  case  of  a  state  which  is  so  split  up  fts  to 


§  97.]  PUBLIC    DEBTS.  339 

lo8e  its  identity  from  that  of  a  state  whifh  .suffers  dismeinl)erment  with- 
out losing  its  identity.  'Such  a  change,'  he  says,  'no  more  affects  its 
rights  and  duties,  than  a  change  in  its  internal  organization,  or  in  the 
person  of  its  rulers.  This  doctrine  applies  to  debts  due  to,  as  well  as 
from,  the  state,  and  to  its  rights  of  property  and  treaty  obligations,  except 
so  far  as  such  obligations  may  have  particular  reference  to  the  revolted  or 
dismembered  territory  or  province. '  " 
Again,  in  a  note  at  page  104,  Hall  says:  "  There  are  one  or  two  instances  in 
which  a  con(juering  state  has  taken  over  a  part  of  the  general  debt  of  the 
state  from  which  it  has  seized  territory.  Thus  in  1866  the  debt  of  Den- 
mark was  divided  between  that  country  and  Schleswig-Holstein  .  .  .  ; 
and  in  the  same  jear  Italy,  l)y  convention  with  France,  took  upon  itself 
so  much  of  the  Papal  del)t  as  was  proportionate  to  the  revenues  of  the 
Papal  provinces  which  it  had  appropriated.  Lawrence,  Commentaires 
sur  les  P^lemens  &c.  de  Wheaton,  I.  214.  .  .  .  Fiore  (§  351  and  note) 
and  other  writers  confuse  local  with  general  debt,  and  elevate  into  a  legal 
rule  the  admitted  moral  propriety  of  taking  over,  under  treaty,  the  gen- 
eral debt  in  the  proportion  of  the  value  of  the  territory  acquired." 

Rivier,  while  stating-  that  the  simple  diminution  of  territory  does 
not  impair  the  treat}-  obligations  of  a  state,  maintains  that  obligations 
of  "private  law,'"'  and  in  particular  the  public  debt,  should  follow  y>/'o 
I'lita  region  Is  the  portions  detached  or  ceded.  Obligations  which  rest 
speciall}'  on  those  portions  follow  them  a  fortiori.  And  if  a  dimin- 
ished state  was  subject  to  a  servitude  that  concerned  onh"  a  part  of 
the  territory,  and  that  the  part  which  passed  to  another  state,  the  lat- 
ter would  be  ])oiuid  though  the  former  was  freed.  Thus  portions  of 
foreign  territory  which  are  added  to  the  territory  of  the  state,  carry 
all  their  charges. 

Rivier,  Principes  du  Droit  des  Gens,  1.  6.'^-65. 

6.  On  Public  Debts. 

S  97. 

The  effect  of  a  change  of  sovereignty  on  public  debts  is  discussed 
with  discrimination  and  exceptional  fullness  in  Appleton's  Des  Effets 
des  Annexions  de  Territoires  sur  les  Dettes  de  TEtat  deiuem])re  ou 
annexe.  See,  also,  Ruber's  Staaten  Succession,  in  whicii  the  effects 
of  a  change  of  sovereignty  are  comprehensively  examined. 

Various  stipulations  as  to  public  del)ts  may  be  foiuid  in   European 

treaties  relating  to   the   transfer  of  territory,  or  to 
European  treaties.      , .  -      •         i    •  i  .■  •       ^  i 

other  acts  mvolving  a  change    ot   sovereignty,   each 

case  being  dealt  with  for  the  most  part  according  to  the  particular 

conditions  on  which  it  depended. 

By   the  Congress  of   Vieima  treaty,  June  5>,   iSla,  provision   was 

made  for  the  apportionment  of  the  debts  of  the  former  Grand  Duchy 

of  Frankfort  (Art.  XL.),  of  Poland  and  the  Duchy  of  Warsaw  (Annex 

II.,  Arts.  XXXI.-XXXVIL),  and  of  Saxony  (Annex  IV.,  Art.  IX.). 


340  sovereignty:  its  acquisition  and  loss.  [§97. 

With  roii-tird  to  Saxony,  it  was  provided  that  ••do])ts  speciall}'  h3poth- 
ecati'd  upon  provinces  which  pass  or  remain,  entire,  under  one  gov- 
erfunent.  shall  V)e  assumed,  entire,  hy  the  trovernment  to  which  the 
provinces  l)elontr."  As  to  debts  ai)pertaininj>;  to  divided  provinces,  or 
to  divided  Saxony  in  general,  there  was  established  between  the  kings 
of  l*russia  and  Saxony  the  following  principle:  "Debts  for  the  pay- 
ment of  the  principal  or  interest  of  which  certain  specilic  revenues 
have  l)een  set  apart,  are  to  be  distinguished  from  other  debts.  The 
tirst  shall  follow  the  revenues  in  such  a  manner  that  each  government 
shall  l)e  liable  for  the  same  proportion  of  the  de})t  as  it  receives  of  the 
revenues.  With  regard  to  debts  for  the  paunent  of  which  certain 
ri^venues  have  not  been  set  apart,  the  objects  for  which  they  were  con- 
tracted ought  to  be  an  index  to  the  funds  on  which  they  should  be  a 
charge:  that  is,  the  revenues  which  should  be  devoted  to  the  payment 
of  the  interest  thereon,  and  the  repayment  of  the  ca])ital.  Prussia 
and  Saxony  will  then  contribute  in  the  proportion  in  which  the}'  receive 
such  revenues.  If.  contrary  to  all  expectations,  eases  shall  arise  in 
which  it  shall  be  impossible  to  designate  exactly  the  special  funds 
which  ought  to  ])e  devoted  to  a  debt,  it  shall  be  charged  upon  the 
totality  of  the  revenues  of  the  province,  establishment,  institution,  or 
fund,  for  the  l)enetit  of  which  it  may  have  been  contracted;  and  it 
shall  be  a  charge  upon  the  two  governments  in  proportion  to  the  part 
of  those  revenues  which  each  of  them  may  receive." 

Hy  a  treaty  between  P" ranee,  (xreat  Britain,  and  Russia,  signed  July 
(i.  1S27.  it  was  arranged  that  the  (treeks  should  hold  toward  Turkey  a 
tributary  relation:  and  by  a  protocol  of  Dec.  1"2,  1S:>8,  the  amount  of 
the  tril)ute  was  tixed  at  an  ultimate  maximum  of  l.oOO.OdO  Turkish 
])iastres.  (See  also  protocol  of  March  22.  lS2Jt.  Hertslet,  Map  of 
Kuiope  by  Treaty.  I.  771.  sol.)  By  a  protocol  of  Feb.  8,  188U,  it 
declared  tiiat  (ireece  should  form  an  independent  state,  to  which  the 
three  powers.  l)y  another  protocol  of  the  20th  of  the  same  month, 
agreed  to  insure  })ecuniarv  aid.  l)y  guaranteeing  a  loan.  The  condi- 
tions of  this  loan  were  tixed  by  the  convention  of  May  7.  ls:^2.  b}' 
which  it  was  provided  (Art.  XIII.)  that,  in  case  a  pecuniary  compen- 
sation shoidd  result  in  favor  of  Turkey  from  the  negotiations  which 
the  three  jjowers  had  opened  at  Constantinople  for  the  definitive  settle- 
ment of  the  limits  of  (Jreece.  the  aint)unt  should  be  defrayed  from  the 
pi-oceeds  of  the  loan.  I>v  the  treaty  of  ,Iuly  81.  1832,  between  France, 
(ireat  Britain,  Russia,  and  Turkey,  for  the  settlement  of  the  conti- 
nental limits  of  (ireece.  the  indemnity  to  Turkey  was  tixed  at  from 
:;ii.(MMi. ()()(»  to  -to.ooo.uoo  Turkish  ])iastres.  according  to  the  adjustment 
of  the  linal  line. 

By  the  treaty  of  Zurich.  Nov.  lo,  lS;V.t.  })etween  Austria,  France, 
and  Sardinia.  Sardinia  assumed  three-fifths  of  the  Monte  Lombardo- 
\  eui'to  drbi.  and  a  part  of  the  Austrian  national  loan  of  1854;  and  it 


§  ^7.]  PUBLIC    DEBTft.  341 

was  provided  that  a  commission  should  Ix'  appointed  to  supervise  the 
division  of  the  debts  and  assets.  It  was  also  stipulated  that  Sardinia 
succeeded  to  '■  rights  and  obligations  resulting  from  the  contracts 
regularly  stipulated  bv  Austrian  administration  in  respect  of  all  mat- 
ters of  public  interests  specially  concerning  the  territories  ct'ded" 
(Art.  VIII.) ;  that  reimbursement  should  be  made  for  sums  deposited 
as  security  (Art.  IX.);  that  various  railway  concessions  should  ])e 
confirmed  (Art.  X.);  and  that  pensions,  civil  and  military,  imiring  to 
the  benefit  of  persons  who  shordd  retain  their  domicil  in  the  ceded 
territory,  should  be  duly  kept  up  by  the  new  government. 

Similar  provisions  in  regard  to  the  apportionment  of  debts  and  the 
preservation  of  other  obligations  of  the  former  government  may  be 
found  in  the  treatv  between  Austria,  Prussia,  and  Denmark  of  Oct. 
30,  1864,  by  which  Denmark  renounced  her  rights  over  the  duchies 
of  Schleswig,  Holstein.  and  Lauenberg.  (See  Articles  VIII.,  IX.,  X., 
XL,  XII.,  XIV.,  XV.-XVIIL,  XIX..  and  the  convention  between 
Austria  and  Prussia  of  Aug.  14,  1865). 

By  the  treaty  of  London  of  1864,  by  which  Great  Britain  renounced 
her  protectorate  over  the  Ionian  Islands  and  consented  to  their  being 
reunited  to  Greece,  the  King  of  Greece  assumed  all  engagements 
legally  concluded  liy  the  government  of  the  islands,  as  well  as  the  pa}'- 
ment  of  various  pensions  and  indemnities. 

By  the  treat}'  of  Frankfort  of  May  10.  1871,  no  apportionment  was 
made  of  the  national  del)t  of  France.  On  the  contrary,  France, 
besides  ceding  Alsace  and  Lorraine,  agreed  to  pay  an  indenmity  of 
5,0O(),00(),0OO  francs,  or,  appi-oximately,  t^l,(»00,O()(),O()0.  But  hy  cer- 
tain additional  articles,  signed  the  same  day,  the  French  (foverinnent 
aoreed  to  use  its  right  to  redeem  the  concession  given  to  the  Rail- 
way  of  the  East,  the  German  Government  agreeing  to  pay  therefor 
325.0( »(»,()()()  francs.  By  an  additional  convention  concluded  Dec. 
11,  1871,  Germany  agreed  to  assume  all  pensions,  civil,  military,  and 
ecclesiastical,  due  to  persons  who  shoukl  retain  their  domicil  in  the 
ceded  territory;  to  repay  moneys  deposited  as  security:  and  to  recog- 
nize and  confirm  concessions  for  wavs,  canals,  and  mines,  as  well  as 
contracts  for  the  renting  or  c-ultivating  of  demesnial  property. 

By  the  treaty  of  Berlin  of  July  13,  1878,  iSIontenegro.  Servia.  and 
Roumania  were  declared  to  be  independent,  while  Bulgaria  became  an 
autonomous  and  tributary  principality.  Stipulations  were  inserted  as 
to  the  ai)i)ortionment  of  the  Ottoman  debt,  and  as  to  tiie  succession  to 
Ottoman  rights  and  obligations.  Xo  part  of  the  Ottoman  debt,  how- 
ever, was  assumed  by  Russia  on  account  of  her  acquisitions  in  Asia. 
It  appears  by  the  seventeenth  protocol  of  the  Berlin  Congress  that 
the  Ottoman  representative,  on  July  10,  1878.  moved  that  Russia 
should  assume  that  part  of  the  Ottoman  ])ul)lic  <lel)t  which  prop(M-ly  fell 
to  the  territory  aimexed   l)y  her.     Count  Schouvaloff  re])lied  that  he 


842  sovereignty:  its  acquisition  and  loss.  [§^7. 

consiclcred  it  to  ]>e  admitted  that,  if  there  wa.s  a  partition  of  debts  in 
rosp«'tt  of  territories  which  were  detaclied  by  means  of  arrangement, 
<,rift.  oi'  exchantre  from  the  countrv  of  wliich  they  formed  a  part,  it 
was  not  so  where  there  was  a  conquest.  Russia,  he  added,  was  a 
conqueror  both  in  tLuroi)e  and  in  Asia;  she  wa.s  not  obliged  to  pa}' 
anythiiijf  for  the  territories,  and  would  not  recognize  any  obligation 
for  the  Turkish  debt.  Prince  (xortchakotf  declared  that  he  opposed 
to  the  Turkish  demand  the  most  categorical  refusal,  and  that  he  would 
not  conceal  the  astonislnuent  with  which  it  inspired  him.  The  presi- 
dent of  the  Congress  observed  that,  in  view  of  the  opposition  of  the 
Russian  plenipotentiaries,  he  could  liut  recognize  the  impossibility  of 
giving  <'rt*ect  to  the  Turkish  proposition." 

The  treaties  between  Spain  and  the  Spanish-American  republics, 
acknowledging  the  independence  of  the  latter,  contain 

Spanish-American  .  -•!..•  •  i  ^  i  i-     j    i  j. 

\  arious  stipulations  in  regard  to  pulnic  debts. 

In  the  treaty  with  Mexico.  Dec.  28,  1830,  it  is  (Art. 
VII.)  recited  thiit.  "•  whereas  the  Mexican  Repu})lic,  by  a  law  passed 
June  i^S.  ls-24.  in  its  Genei-al  (Congress,  has  voluntarily  and  spontane- 
ously recognized  as  its  own  and  as  national,  all  debts  contracted  upon 
its  treasury  ])V  the  Spanish  (lovernment  of  the  mother  countrv  and  In* 
its  authorities,  during  the  time  they  ruled  the  now  independent  Mexican 
nation,  until,  in  ls:>l.  they  entirely  ceased  to  govern  it,  and  that  ))esides 
there  do»'s  not  exist  in  the  said  Republic  any  conriscation  of  property 
which  belonged  to  Spanish  subjects."  the  two  governments  agree  to 
make  no  claims  or  pretensions  on  these  points.'' 

Ecuador,  hy  the  treaty  of  Feb.  16,  1.S4U  (Art.  V.)  assumed  all  debts 
contracted  uj)on  tlie  credit  of  her  treasury,  whether  by  direct  orders 
of  tile  Spanish  (iovenmient  or  by  its  authorities  in  Ecuador,  provided 
that  it  was  shown  that  they  wer«»  contracted  within  the  territory  by 
that  (  n)\  I'lninent  and  its  authorities  while  they  administered  it.  until 
they  entirely  ceased  to  govern  it  in  1S^2.'' 

I'luguay.  l)y  tiie  treaty  of  Oct.  H.  1S41.  (Art.  XI.)  assumed  "the 
debt  contiacted  l»y  the  Spanish  authorities  upon  the  revenues  of 
Montevideo,  as  far  as  up  to  June.  I8l-t."'' 

Chile,  in  Art.  I\'.  of  the  treaty  of  April  2.5.  1814,  incorporated,  as 
part  of  the  treaty,  the  law  of  the  Republic  of  Nov.  IT.  1S8,5.  acknowl- 
edging, •'voluntarily  and  spontaneously,  as  the  del)t  of  the  nation, 
the  debts  contracted  by  th«;  Chilean  (tovernment  during  the  war. 
those  contracted  }>y  th«'  (Tovernment  and  Spanish  authorities  in  Chile, 
as  well  as  those  contracted  l)y  the  Chilean  Government  before  and 
al'tei-  Sept.   is.  iNlO."*' 


"I'.r   iS:  K..r.  Stat.-  Papers.  lAIX.  lOoo. 
''Hr.  iV:  Fur.  State  I'ajK-rs,  XXIV.  S()4. 
•  Br.  vS:  For.  State  Papers,  XXIX.  VMr, 
''Br.  it  For.  State  Paj.ers,  XXX.  MMHi. 
■  Br.  <V  For.  State  Pai>ers.  XXXIV.  11U8. 


§  ^'^■]  THE    TEXAS    DEBT.  343 

Venezuela,  bj^  the  treaty  of  March  30,  1845  (Art.  V.)  recognized  as 
a  national  debt  the  debts  charged  to  the  treasury  of  the  Captaincy- 
General  of  Venezuela." 

The  treaties  of  Bolivia,  July  21,  1847;  Costa  Rica,  May  10,  1850, 
and  Nicaragua,  July  25,  1850,  contain  (Art.  V.)  substantially  the  same 
stipulation,  by  which  each  republic  recognized  as  part  of  its  debt  '"all 
credits,  of  whatever  class,  for  pensions,  salaries,  supplies,  loans, 
freights,  forced  loans,  deposits,  contracts,  and  an}'  other  debt,''  con- 
tracted under  direct  orders  of  the  Spanish  Government  or  its  func- 
tionaries in  the  territory,  up  to  the  time  when  the  Spanish  authorities 
evacuated  the  country.^ 

The  x^rgentine  Confederation,  by  the  treaty  of  July  9, 1859,  acknowl- 
edged (Art.  IV.)  as  part  of  the  debt  of  the  Republic  '"all  debts  of  any 
kind  whatsoever  contracted  by  the  Spanish  Government  or  its  author- 
ities in  the  old  provinces  of  Spain,  whicli  constitute  at  present,  or 
which  may  hereafter  constitute,  the  territory  of  the  Argentine  Repub- 
lic, evacuated  l)y  Spain,  May  25,  1810."'"  The  same  provision  consti- 
tutes Art.  IV.  of  the  treaty  of  the  Argentine  Republic  with  Spain  of 
Sept.  21,  1863.'' 

Guatemala,  by  the  treaty  of  May  29,  1863,  recites  (Art.  IV.)  that 
the  Republic  has  by  law  recognized,  as  a  debt  of  the  nation,  that  part 
of  it  which  comprised  the  debt  of  the  ancient  Captaincy-General  of 
Guatemala. '' 

Substantially  the  same  provision  is  found,  midati.s  mutandis^  in 
Art.  IV.  of  the  treaty  of  Salvador  with  Spain,  concluded  June  24, 
1865.-'' 

Texas,  during  its  existence  as  an  independent  republic,  contracted 

various  pecuniary  obligations,  and  bonds  were  issued. 
The  Texas  debt.      ,•         .i  /      ^       i_  •    i_    j.i        j?    •^i.  j  i> 

tor  the  payment  ot  which  the  faith  and  revenues  of 
the  Republic  were  pledged  by  the  acts  of  its  Congress  of  November 
18,  1836,  and  May  15,  1838.  Provision  was  also  made  by  an  act  of 
January  22,  1839,  that  a  certain  portion  of  the  sales  of  the  public 
lands  should  be  annually  reserved  as  a  sinking  fund  for  the  payment 
of  the  debt  until  the  whole  should  be  paid." 

By  the  unratified  treat^v  of  1844,  for  the  annexation  of  Texas,  ''the 
United  States  assumed  the  payment  of  the  debts  of  Texas  to  an 
amount  not  exceeding  5^10,000,000,  to  be  paid,  with  the  exception  of  a 
sum  falling  short  of  $400,000,  exclusively  out  of  the  proceeds  of  the 

<'  Br.  ct  For.  State  Pai^ers,  XXXV.  :^01. 
''Br.  it  For.  State  Papers,  LIX.  422;  XXXIX.  KWl,  1340. 
<■  Br.  Si.  For.  State  Papers,  L.  1 1(30. 
<fli\.,  LIII.  307. 

''Br.  &  For.  State  Papers,  LIX.  1200. 
/Br.  ct  For.  State  Papers,  LVIII.  1250. 

y  International  Arbitrations,  IV.  359;  (iouge.  The  Fiscal  History  of  Texas,  see 
generally. 


344  SOVKKKIGNTV:    ITS    ACQUISITION    AND    LOSS.  [§97. 

sjiU's  of  her  public  lands.  Wo  could  not  with  honor  tako  the  lands 
without  assuniinjjf  tho  full  payment  of  all  incunihrances  upon  them."" 

Acc'ordino-  to  the  terms  suhseiiuently  a<>Teed  upon  ])etween  the 
United  States  and  the  Republic  of  Texas.  where))y  the  latter  became 
one  of  the  rnited  States  of  America,  the  vacant  and  unappropriated 
lands  within  its  limits  wei-e  to  l)e  retained  ))y  the  State  and  "applied 
to  the  payment  of  the  del)ts  and  liabilities  of  the  Republic  of  Texas; 
and  the  residue  of  the  lands,  after  discharcriuo-  the  debts  and  liabilities, 
were  to  be  disposed  of  as  the  State  mif^ht  direct,  but  in  no  event  were 
said  del)ts  and  lial)ilities  to  become  a  charge  upon  the  Government  of 
the  United  States."*'' 

Subsecpiently  the  United  States,  in  .185(\''  in  consideration  of  a 
modification  of  th(»  Texas  ))oundar3',  of  the  cession  to  the  United  States 
of  all  claim  to  territory  exterior  to  such  ])oundary,  and  of  the  relin- 
([uishment  by  Texas  of  "all  claim  upon  the  United  Stiites  for  lial)ility 
of  the  de])ts  of  Texas"  and  for  compensation  for  the  surrender  of 
forts  and  other  public  property.  a<^reed  to  pay  to  Texas  ^10,000.000,  but 
stipulated  that  five  millions  thereof  should  remain  unpaid  ''until  the 
creditors  of  the  State  holdintr  bonds  and  other  certificates  of  stock  of 
Texas,  for  which  duties  on  imi)orts  were  specially  pledged,  shall  first 
file  at  the  Treasury  of  the  Ignited  States  releases  of  all  claim  against 
the  United  States  for  or  on  account  of  said  bonds  or  certificates  in 
sucli  form  as  shall  l)e  prescril)ed  )>y  the  Secretary  of  the  Treasury  and 
approved  by  the  President  of  the  United  States." 

A  dirticulty  arose  in  cariying  this  law  into  efl'ect,  owing  to  the  facts 
(1)  that  the  debts  of  Texas  were  charged  generally  upon  her  revenues, 
and  not  specifically  on  "imposts"  >(>  hom'tne,  and  (2)  that  doubts  arose 
whetiicr  under  the  agreement  l)etween  the  State  and  the  United  States 
any  ])ai-t  of  the  debts  could  be  paid  unless  the  whole  should  be 
discharged."'  These  ((uestions  formed  the  subject  of  exhaustive 
reports  by  Mr.  Corwin,  Secretary  of  the  Treasury,  and  later  of  an 
extended  and  able  opinion  ])V  Attorney-(ienei"al  Cushing.'^  In  the 
coui'se  of  this  opinion,  which  was  largely  devoted  to  the  proper  con- 
struction of  the  act  of  Congress.  Mr.  Cushing  said: 

"It  is  contended  in  some  of  the  arguments. l^efore  me.  and  assumed 
by  the  late  Sccictary  of  the  Treasury,  that  the  receivability  of  the 
]>onds  under  this  act  in  ])ayment  of  any  'duties  by  import.*  constitutes 
a  sp<'cial  i)ledgc  of  duties  on  imports  within  the  meaning  of  the  phrase 
in  the  act  of  ('ongr(>ss.      I   flo  not  think   this  altogether  certain;  for, 


"  rroidciit. Tyler' .>^  4th  Animal  Mi'ssaL'e,  I)ecciul>er ."..  1S44,  RichardHon's  Messiages, 
IV.  ;;)i. 

''-■■)  Stat.-,  at  L.  7ns. 

•Art  of  Sc].t.  '.»,  isr»0,  !>  Stat.«.  44r,. 

''S.  i:\.  !)(..•.  Ki:;.  :;4  Vim)i.  1  ses.<.  4U()-4()7. 

'  ti  dp.  l.'iO.  Sc|,t.  L'C.  185:!. 


•S  97.]  THE    TEXAS    DEBT.  345 

although  the  United  States,  bv  receiving  the  Kepu])li('  of  Texas  into 
the  Union,  extinguished  all  the  separate  import  duties,  and  collects 
them  into  the  Federal  Treasury,  and  may  therefore  he  under  o})ligati()n 
to  see  that  all  such  debts  of  Texas  as  were  made  receivable  for  duties 
on  imports  are  provided  for,  it  would  not  therefore  follow  of  necessity 
that  all  such  de))ts  have  been  in  fact  provided  for  by  the  act  of  Con- 
gress under  consideration.  .  .  .  The  claims  to  be  released  are:  1. 
Bonds,  or  certificates  of  stock:  not  all  evidences  of  inde))tedness.  but 
bonds  or  certificates  of  stock.  This  excludes  not  only  arrearages,  if 
any  due,  for  supplies  or  services,  or  any  other  liquidated  debt,  but 
also  the  circulating  notes  of  the  i>th  June,  1S37.  ...  2.  The  bonds 
and  certificates  of  stock  to  be  released  are  such  for  which  duties  on 
imjKjrts  were  specially  pledged,  a  pledge  of  all  revenues  being,  in  my 
judgiuent.  a  pledge  of  revenues  from  customs.  Therefore,  the  scope 
of  the  condition  covers  .  .  .  all  loans  negotiated  by  the  Republic  of 
Texas.  But  the  circulating  promissory  notes  of  the  treasury,  the  red- 
])acks.  do  not  in  my  opinion  come  within  the  true  meaning  of  the 
phrase  "loans  negotiated  by  the  Repul)lic."'  .  .  .  The  Ignited  States, 
in  taking  from  Texas,  by  the  act  of  1850,  a  cession  of  a  large  quantity 
of  her  "  vacant  and  unappropriated  lands,"  and  in  paying  her  therefor, 
chose  to  stipulate  that  a  portion  of  the  purchase-money  should  be 
'applied  to  the  payment  of  the  debts  and  liabilities  of  said  Republic 
of  Texas."  It  by  no  means  follows  that  the  United  States  have 
assumed  any  liability  thereby,  or  impliedly  recognized  the  existence 
of  any  liability  on  their  part:  nor  that  any  less  readiness  will  be 
shown  by  the  proud  and  wealthy  State  of  Texas  to  fulfil  the  engage- 
ment in  regard  to  her  debts  contained  in  the  compact  of  her  admission 
into  the  Union. 

"To  what  extent,  and  when,  the  United  States  will  in  justice  and 
ecpiity  be  liable,  if  ever,  to  the  creditors  of  the  Republic  of  Texas, 
because  of  a  lien  held  ])y  them  upon  the  revenue  of  that  Republic  to 
arise  from  duties  on  imports,  and  the  transfer,  l)v  the  act  of  annexa- 
tion to  the  United  States,  of  the  sole  and  exclusive  power  to  levy 
money  )>v  duties  on  customs,  imports,  and  tonnage,  is  not  a  (juestion 
which  the  Executive  of  the  United  States  can  decide.  That  question 
belongs  properly  to  the  Congress  of  the  United  States,  which  has  not 
as  yet  assumed  to  pay  the  debts  of  Texas. 

'"That  question,  if  there  ))e  any,  of  the  liability  of  the  United  States 
in  the  premises,  goes  deeper,  indeed,  than  the  mere  fact  of  revenue 
from  customs  expressly  or  specially  pledged;  for  all  the  revenues  of 
Texas,  even  where,  as  in  the  case  of  outstanding  and  unliquidated 
accounts  for  supj)lies  and  services,  not  expressly  })ledged.  were  yet 
impliedly  engaged  for  the  payment  of  all  the  d(0)ts  of  the  Republic. 
And  though  the  accession  of  Texas  to  the  American  Union  relieved 
her  of  the  bnrdiMis.  and  consequently  expenses,  military  and  civil,  of 


34<>  sovkrkignty:  its  acquisition   and  loss.  [i^  97: 

separate  imtionality,  still  it  deprived  her  of  certain  revenues,  which 
Ikm-imk'  iiTe\(»t-al)ly  vested  in  the  United  States. 

'"A  i)uhlic  cnHiitor.  like  a  private  creditor,  has  a  general  right  to 
receixc  ])aynient  out  of  the  pro})erty.  income,  or  means  of  his  debtor. 
A  special  piedo;(>  of  this  oi-  that  source  of  revenue,  of  this  or  that 
direct  tax.  or  indirect  tax.  when  made  l)v  a  g-ovcrnment,  renders  such 
source  of  re\enue.  like  a  niortgao-e  or  deed  of  trust  given  by  a  private 
individual  to  his  creditor,  a  specific  lien,  a  fixed  incmnbrance,  which 
the  govcnunent  ought  not.  in  justice  to  the  creditor,  to  abolish,  lessen, 
or  alienate,  until  the  del)t  has  been  satisfied.  But  a  puldic  creditor, 
like  a  pi-ivate  oiu^  oven  as  to  debts  irot  secured  bv  hypothecation  of 
six'citic  pi-operty  or  other  express  lien,  ought  not  to  deprive  himself 
of  the  means  of  payment:  as  the  two  governments,  that  of  Texas  and 
of  the  United  States.  al)undantly  indicated,  as  well  ])y  the  compact  of 
aimexion  as  by  that  for  the  change  of  })oundaries. 

"■  I  waive,  therefore,  as  irrelevant  to  the  present  object,  all  inquiry  as 
to  what  Congress  ought  to  do  in  the  premises,  in  conse(iuence  of  the 
al)s()rption,  ])y  the  United  States,  of  the  revenues  from  duties  of  imposts 
and  tonnage,  which  might  have  accrued  to  the  Republic  of  Texas  if 
she  had  not  consented  to  become  one  of  the  United  States  of  America." 

In  lS.")-t.  while  these  (juestions  were  still  pending,  and  while  a  bill 
was  under  consideration  in  Congress  for  their  adjustment,  an  English 
holder  of  a  Texas  bond,  issued  in  July,  lS3t',  brought  a  claim  against 
the  United  States  for  the  pavment  thereof  before  the  mixed  commis- 
sion organized  under  the  convention  l)etween  the  United  States  and 
(ii'cat  Britain  of  February  S,  185^,  for  the  settlement  of  claims  of 
citizens  or  su))je<ts  of  the  one  country  against  the  Government  of  the 
other.  Mr.  lloi-nby.  the  Bi-itish  commissioner,  held  that  the  claim 
should  be  allowed.  On  the  other  hand.  Mr.  Upham,  the  American 
connnissioniM',  maintained  that  the  commission  had  no  jurisdiction  of 
the  sul)ject.  The  indebtedness  of  Texas  was,  he  said,  "a  distinct  sub- 
ject of  agreement  by  tlu>  terms  of  the  union;"  the  United  States  and 
Texas,  as  was  shown  by  the  act  of  1850.  the  report  of  Mr.  Corwin,  the 
opinion  of  .Mr.  Cusldng.  and  the  })ending  legislation,  were  acting  in 
concert  to  cause  the  debts  to  lie  })aid;  whether  th(>  United  States  should 
'•be  liab|(>  foi-  this  indel)tedness."  he  did  not  feel  '"  called  upon  to 
decide:"  the  tendency  of  the  opinion  of  Mr.  Cushing.  so  far  as  his 
views  could  be  gathei'ed.  was  to  establish  such  liability  in  part;  it  was 
clear  that  Texas  was  not  exonerated  from  the  debt,  and  the  Unitpd 
States  had  manifested  a  strong  disposition  to  ]>ring  af)out  its  adjust- 
ment: but  there  was  nothing  to  show  thiit  the  subject  was  within  the 
jui'isdiction  of  the  commission:  it  had  not  been  l)rought  to  the  notice 
of  either  (ioveriunent.  oi'  made  a  matter  of  correspondence  or  difficulty 
between  them,  or  included  in  any  list  of  unsi^ttled  claims  iit  the  date 
of  the  conxcntion:  it  th<'refore  did  not  appeal'  to  be  within  the  intent 


§  97.]  FIJI    DEBTS.  347 

of  either  conti'aeting  party  as  a  matter  to  ])e  acted  upon  by  the  com- 
mission." 

The  umpire  dismissed  the  claim,  it  })eing  for  transactions  witli  the 
independent  Repulilic  of  Texas  prior  to  its  admission  as  a  State  to  the 
United  Sttites."'' 

By  an  act  of  Congress  of.  Feb.  28,  1855.  it  was  provided  that,  in  lieu 
of  the  $5,00U,0()(J  payable  to  Texas  in  5  %  stock  under  tiie  act  of  1n5(J, 
the  Secretary  of  the  Treasury  should  pa}'  to  the  creditors  of  the  late 
Republic,  who  held  ""such  V)onds,  or  other  evidences  of  debt  for  which 
the  revenues  of  that  Republic  were  pledged,"  as  were  found  by  Mr. 
Corwin  in  the  report  approved  by  the  President  Sept.  13,  1851.  or  by 
Mr.  Cushing  in  his  opinion  of  Sept.  20,  1853,  to  be  within  the  act  of 
1850,  the  sum  of  §7,75<t.0()0,  to  be  apportioned  among  the  holders  pro 
rata,  the  interest  on  such  debt  to  be  determined  by  the  then  existing 
laws  of  the  State  of  Texas.'" 

"It  has  been  reported  that  the  existing  Government  has  contracted 
a  considerable  debt.  Full  particulars  should  be  ascer- 
tained as  to  this  debt,  the  amount  of  the  principal 
and  interest,  the  circumstances  under  which  it  has  been  contracted, 
the  persons  from  whom  it  h^is  ])een  borrowed,  the  validity  of  the 
engagements  entered  into  with  them,  the  manner  in  which  the  money 
so  obtained  has  been  expended,  and  the  precise  extent  of  the  obli- 
gations which  would  have  to  be  assumed  in  respect  of  this  debt  )\v 
the  future  government  of  Fiji  if  the  islands  should  be  annexed  to  the 
British  Crown.  It  will,  of  course,  be  understood  that  Her  Majesty's 
(xovernment  could  not  consent  to  make  the  revenues  of  this  countr}- 
liaVjle  in  any  way  for  this  debt,  or  to  charge  upon  them  any  portion  of 
the  cost  of  the  local  government,  or  of  maintaining  order  within  the 
Islands." 

Earl  of  Kiiiiherly,  Colonial  Secretary,  to  Coinino<lore  <ioo<lenough,  R.  X.,  and 
Mr.  I^yard,  Britinh  consul  in  Fiji,  Aug.  lo,  1S7:^,  ('.  988,  .\pril,  1S74,  \>.  6, 
in>'tructing  them  to  report  upon  the  question  of  the  proposeil  annexation 
of  the  Fiji  Islands. 

"II.  Liabilities. 

"0.  1  have  directed  the  accounts  of  the  former  Governments  to  be 
closed  to  the  10th  of  October,  the  date  of  cession;  and  all  then  out- 
standing revenue  as  it  comes  in  to  be  applied  to. the  reduction  of  the 
ol)ligations  unpaid  at  that  date.  It  will,  therefore,  be  some  short  time 
before  the  precise  amount  of  the  liabilities  outstanding  at  the  date  of 

as.  Ex.  Doc.  103,  84  Cong.  1  ses.«.  406-40i». 

''Moore,  Int.  Arbitrations,  IV.  8591-8594. 

<"10  Stats.  <)17-<)19.  See  I^wrenee's  Wheaton  (1868),  54,  note;  Dana's  Wheaton. 
§80,  note  IS.  The  following  Congressional  documents  may  he  consulted  in  regard 
to  the  Texas  del.ts:  S.  Ex.  Doc.  29,  28  Cong.  2  sess.;  S.  Mis.  72,  82  Cong.  1  sess.;  H. 
Mis.  17,  88  Cong.  2  ses.s.;  S.  Mis.  1,  84  Cong.  8  sess.;  S.  Mis.  198,  85  Cong.  1  sess. 


548  sovkreignty:  its  acquisition  and  loss.  [§97. 

rossion  ciiii  1m'  ascertained;  ])ut  Mr.  Thurston  hiis  supplied  me  with  an 
approximate  statiMuent  of  the  liahilities  computed  to  the  30th  of  Sep- 
temlxM'.  ls74.  a  copy  of  which  I  inclose.  This  document,  although 
susceptible  of  alteration  to  some  small  extent,  is  no  dou])t  sufHciently 
accurate  for  all  practical  purposes,  and  will  ena))le  Her  Majesty's  Gov- 
ernment to  decide  the  j^eneral  principles  upon  which  the}'  will  be 
pre})ared  to  deal  with  these  oblitrations.  The  account  shows  a  total 
liability  of  s7,«t:^,l  /..  and  the  various  claims  may  be  divided  into  four 
class(^s: 

•*(l)  Amount  due  to  debenture  holders. 

"('J)  Amount  <lue  to  Fiji  Hankino-  Company. 

"{'.))  Amount  due  to  Government  officials  and  servants  for  salaries 
and  wai:«\s. 

-  *'(4)  Amount  due  to  merchants  an<l  tradespeople  for  stores  and 
supplies, 

•"  7.  I  ol)serve  in  the  statement  that  two  sums  of  (565/.  and  520/.  for 
the  amount  short  paid  on  salaries  during  the  r^//^/  iidcvhn  Consular  Gov- 
ei-nment  ai-(>  put  down  amongst  the  liabilities.  But  I  thiidv  that  these 
sums  should  l)e  struck  out  altogether.  The  salaries  were  reduced  in 
March  last.  l)ecause  it  was  estimated  bv  Commodore  Goodenouoh  and 
Mr.  Consul  Layard  that  such  a  step  was  necessary  to  bring  the  expend- 
itur*^  of  the  (Toveriuuent  within  the  receipts.  The  necessity  for  such 
asti'phas  l)»M>n  proved  by  the  result.  Notwithstanding  these  reductions 
the  I'ln'enue  has  been  unecpial  to  the  expenditure,  and  the  reductions, 
whicii  might  })<M-haps  ha\e  been  claimed  if  the  revenue  had  proved 
surticient  to  cover  them,  should  not  now  l)e  recognized  amongst  the 
liabiHties  of  the  GoNtM-nment. 

"S.  As  i-egards  th(*  remaind«n"  of  the  claims,  it  nmst  be  borne  in 
mind  that  they  haxc  all  accrued  since  1871.  and  that  the  lenders  prac- 
tically ti'usted  for  the  re])ayment  of  their  advances  to  the  success  of 
the  so-ctilled  (  onstitutional  (rox-ernnKMit.  That  experiment  has  proved 
a  <-omplete  failui'e.  The  security  upon  which  the  money  was  lent  has 
thei-efore  become  \alueless.  and  if  th(^  cession  of  the  counti'v  had  not 
been  acceptetl  by  (ireat  Britain,  not  a  fraction  of  these  liabilities 
would  ever  lia\(»  l>een  recov<'re(l  by  the  Goxernment  creditors.  It 
ajipears  to  me.  therefoi'e.  to  t)(>  competent  for  Her  Majesty's  Govern- 
ment with  perfect  ('((uity  to  (lecid(^  upon  tiie  manner  in  which  these 
liabilities  siiall  tie  (fesilt  with,  and  that  any  amount  received  by  the 
creditors  of  the  late  (lovcM-nment  siiould  be  looked  upon  by  them  as 
so  nuich  I'ecoN chmI  of  a  worthless  debt — so  nuich  I'escued.  as  it  were, 
fiom  the  wreck  of  a  losing  \enture.  X'iewed  in  this  light,  I  do  not 
think  that  the  British  (iovenuuent  is  in  jmy  way  called  upon  to  give 
the  creditors  of  the  collapsed  Fijian  (iox-ermnent  the  full  amount  of 
tlieii-  claims.  l''or  example,  the  51.4<»(»  /.  of  the  10  per  cent,  (iovern- 
nieiit  debentuies.  which   is  the  tii'st  item  in  the  list  of  liabilities,  only 


§  97.]  FIJI    DEBTS.  349 

realized  40,502  /. .  whilst  the  next  item  on  the  li.st,  r»,94<)  /..  is  interest 
on  the  nominal  debt  at  10  per  cent,  calculated  to  the  3<tth  ultimo.  If 
the  attempt  to  establish  constitutional  (government  had  proved  suc- 
cessful, the  creditors  might  fairly  have  claimed  to  be  i)aid  according 
to  the  letter  of  their  l)ond;  but  the  experiment  having  (•olla})sed.  it 
would  be  preposterous  for  them  now  to  expect  to  ])e  i)aid  by  (ireat 
Britain  the  risk  premium  and  high  rate  of  interest  which  they  might 
fairly  have  claimed  if  they  could  have  recovered  it  from  the  Fijian 
Government. 

'■•y.  I  would  suggest  that  the  four  classes  into  which  1  have  divided 
the  creditoi's  of  the  late  Fijian  Government  might  be  dealt  with  upon 
the  following  libei'al  i)rinciples:  Classes  I  and  '2,  the  debenture  hold- 
ers and  the  bank,  might  be  repaid  the  amounts  actually  advanced 
in  each  case.  Avith  the  simple  interest  at  the  rate  of  .j  per  cent,  per 
annum.  The  arrears  of  salaries  and  wages  due  to  Class  3  might,  I 
think.  ))(•  paid  in  full  without  interest;  and  the  commercial  and  trade 
accounts  found,  upon  full  inquiry,  to  be  due  to  Class  4.  might  be  paid 
less  1(»  or  15  per  cent,  abatement — the  amount  charged  in  such  cases 
being  prol)ably  based  upon  a  liberal  calculation  of  the  risks  involved 
in  the  transaction. 

"lo.  If  the  accompanying  statement  of  liabilities  were  adjusted 
upon  this  principle  the  amount  of  indebtedness  would  be  reduced  from 
8T,f)31/.  to  about  Tl.oOo/.  or  72,000/. 

••III.  Fiji  Bank  Charter. 

"11.  A  copy  of  this  document  will  ]>e  found  attached  to  the  report 
of  Connnodore  Goodenough  and  Consul  Layard  already  laid  before 
Parliament.  The  Charter  was  granted  on  the  18th  of  August,  1873, 
by  the  King  and  his  ^Ministers,  the  Constitution  of  1871  being  declared 
in  th«»  deed  to  have  been  at  that  time  a)>rogated.  The  validity  of  the 
instrunient  may  therefore,  I  think,  fairly  be  questioned.  It  contains 
also  some  provisions  which  are  inadmissil)le  in  a  British  Colony,  such 
as  u  monopoly  of  banking  for  fourteen  years,  and  exemption  from 
taxation  for  a  similar  period. 

■'12.  I  venture  to  recommend,  therefore,  that  this  Charter  should 
not  be  recognized  by  H<>r  Majesty's  Government.  The  Company 
might,  however,  be  allowed  to  retain  so  much  of  the  10,000  acres 
promised  to  them  as  they  have  actually  been  placed  in  possession  of, 
and  a  charter  might  l)e  gi\'en  to  them  such  as  is  usually  granted  to 
Banking  Companies  in  Crown  Colonies  on  their  complying  with  the 
ordinary  conditions." 

Sir  Hert-ules  Kolnnson,  (lovernor,  to  Earl  of  ("arnarvon,  Colonial  Secretary, 
Oct.  K),  lcS74,  C.  1114,  Feb.  6,  187o,  48-50. 

"II.   Lia]>ilities. 

"5.  In  the  next  place,  with  respect  to  the  liabilities  incurred  by  the 
persons  who  administered  the  so-called  Government  of  Fiji  before  the 


350  sovereignty:  its  acquisition  and  loss.  [§^7. 

lossioii.  1  coiK'ur  vorv  i>onenilly  with  Sir  H.  Robin.son''s  view  of  the 
rcliition  ill  which  the  new  Colonial  Govornnient  stjinds  toward  those 
who  h:i(l  (leulintjfs  with  Thakombairs  Goverrnnents,  and  the  course 
which  should  l)c  taken  in  I'espect  of  their  claims. 

••ti.  You  will  cause  it  to  be  very  clearly  understood  that  Her 
Majesty's  Government  and  the  Colonial  Government  absolutely  and 
entirely  d(>cline  to  admit  that  they  are  necessarilv  under  any  obliga- 
tion to  take  up  the  liabilities  incurred  by  those  who  have  ])urported  to 
administer  the  attairs  of  the  Islands.  No  claim  of  the  kind  preferred 
by  way  of  demand  or  as  of  right  can  for  a  moment  ])e  entertained,  and 
to  prevent  aiiy  possible  misconception  of  such  a  ({uestion  it  may  be 
desirable  to  relieve  the  Goveriuncnt  from  any  attempts  to  press  such 
claims  by  passing  an  Ordinance  declaring  that  no  action  shall  lie  against 
the  Crown  or  the  Colonial  Government  in  respect  of  liabilities  incurred" 
by  the  late  King  or  by  any  persons  not  in  the  employment  of  the  Crown 
or  the  Colojiial  Govenuuent. 

""7.  But  although  I  think  it  necessar}"  to  define  iji  the  strongest 
manner  the  refusal  of  Her  Majesty's  Government  to  accept,  or  allow 
the  Colonial  (iovernuKMit  to  accept,  any  direct  liability  or  ol)ligation 
connected  with  the  acts  of  persons  for  whom  it  has  been  in  no  wa}' 
responsible,  I  am  nevertheless  of  opinion  that  it  will  be  for  the  credit 
of  the  newly  constituted  Government  that  voluntarily,  and  as  an  act 
of  grac(>.  it  should  oU'er  to  undertake  the  paynient  of  so  nuu'h  of  the 
d(^t)ts  incurred  before  the  cession  as  after  pi"oi)er  iiupiirv  it  may  appear 
just  and  fair  for  it  to  assume.  As  Sir  H.  Robinson  has  pointed  out, 
it  will  be  necessary  for  this  ])urpose  to  examine  carefully  all  claims  put 
forward,  and  as  at  ])resent  ad\ised,  I  am  of  opinion  that  the  four  classes 
of  the  creditors  of  the  so-called  Fijian  (ioveriuuent  may  be  dealt  with 
on  tli(>  general  ])rinciples  laid  down  in  paragraph  J>  of  his  despatch  of 
2oth  October.  Hut  with  regard  to  the  time  and  manner  in  which  any 
such  ])aym(nits  are  to  l)e  made,  the  Government  of  Fiji  must  reserve 
to  itM'Jf  the  fullest  discretion. 

••s.  1  am  disposed  to  think  that  the  best  course  will  be  for  you  to 
notify  publicly,  as  soon  as  convenient  after  your  assumption  of  the 
(iovernment.  that  while  the  (xoveriuuent  of  Fiji  declines  to  be  respon- 
sil)le  for  any  del)ts  or  liabilities  incurred  b}- or  in  the  name  of  Tha- 
kombau  oi-  any  other  ])ei-s()ns  purporting  to  represent  any  Govern- 
ment of  Fiji  ])rior  to  the  ci\ssi()n,  it  is  nevertheless  willing  to  consider 
any  proofs  that  may  1)0  bi-ought  forward  of  money  or  supplies  having 
been  actually  provided  for  i)ut)lic  purposes;  but  the  persons  so 
applying  to  be  reimltursed  must  be  madi^  clearly  to  understand  that  it 
will  icst  (Mitirely  with  the  Colonial  (iovermniMit  (subject,  if  necessary, 
to  a  leference  to  the  Secretary  of  State)  to  decide  in  each  case  whether 
the  sum  claimed,  or  a  part  of  it,  should  be  paid,  and  if  so,  at  what 
time  and  in  what  manner  the  ])ayment  shall  be  made." 

Karl  of  ("arnarvoii.  Colonial  Secretary,  to  Sir  A.  II.  (lordon,  governor  of  P'iji, 
March  4,  IST.'i.  ('.  1337,  Aug.  6,  1875,  7-8. 


§  97.]  THE    HAWAIIAN    DEBT.  351 

"111.  and  W.   Fiji  Bank  and  Polynesian  Land  Company. 

"11.  1  sec  no  reason  to  differ  from  the  general  conelusions  arrived  at 
f)y  Sir  H.  Robinson  as  to  these  two  Charters.  Not  only  are  tiiev  neees- 
sarily  rendered  void  by  etfacenient  of  the  so-called  Goverinnent  which 
purported  to  grant  them,  but  they  are  in  some  ol)vious  respects  con- 
trary to  those  principles  of  policy  which  must  prevail  in  a  British 
Colony.  If  after  in(pury  you  see  no  objection  to  dealing"  with  these 
Companies  in  the  manner  proposed  by  Sir  H.  Robinson,  you  have  my 
sanction  for  taking  that  course." 

Earl  of  Carnarvon,  Colonial  Secretary,  to  t^ir  A.  il.  Uortlon,  governor  of  Fiji, 
March  4,  1875,  C.  1337,  Aug.  (5,  1875,  8. 

By  the  joint  resolution  of  -luly  7,  1<S!»S.  to  provide  for  the  annexation 

of  the  Hawaiian  Islands.  *'  the  public  debt  of  the  Repub- 
The  Hawaiian  debt.  ,.        ,.  tj  ..     ,        <•    n  •   *.-  4.  ^.u      i    i.        a  ..i 

lie  ot  Hawaii,  lawfully  existing  at  the  date  or  the  pas- 
sage" of  the  resolution,  "including  the  amounts  due  to  depositors  in 
the  Hawaiian  Postal  Savings  Bank,"  was  "assumed  by  the  (xovernment 
of  the  Cnited  States"  to  an  amount  not  to  exceed  ^,(J0(),()(>();  but,  as 
it  was  declared  that,  until  legislation  should  be  enacted  extending  the 
United  States  customs  laws  and  regulations  to  the  islands,  their  exist- 
ing customs  relations  with  the  United  States  and  other  coiuitries  should 
remain  unchanged,  it  was  provided  that,  so  long  as  those  relations 
should  continue,  the  Hawaiian  Government  should  pay  the  interest  on 
the  debt. 

By  the  protocol  of  armistice  l)etween  the  United  States  and  Spain, 

signed  at  Washington  August   12,   1S98,  it  was  pro- 
The  Cuban  debt.        •  1     i 
vided: 

"Article  1.  S})ain  will  reliiKjuish  all  claim  of  sovereignty  over  and 
title  to  Cuba. 

"Article  II.  Spain  will  cede  to  the  United  States  the  island  of  Porto 
Rico  and  other  islands  now  luider  Spanish  sovei  Mgnty  in  the  West 
Indies,  and  also  an  island  in  the  Ladrones  to  be  selected  by  the  United 
States." 

In  the  peace  negotiations  at  Paris,  the  American  commissioners, 
Oct.  H,  IMis,  proposed  the  insertion  in  the  definitive  treaty  of  the 
following  clauses: 

"The  Government  of  Spain  hereby  relinquishes  all  claim  of  sover- 
eignty over  and  title  to  ('uba." 

"  The  Government  of  Spain  hereby  cedes  to  the  United  States  tin; 
Island  of  Porto  Rico  and  other  islands  now  under  Spanish  sovereignty 
in  the  West  Indies,  and  also  the  Island  of  Guam,  in  the  Ladi-ones." 

The  Spanish  commissioners  submitted.  Oct.  7.  ISHS.  a  counter  pi'o- 
posal.  l>y  which  Spain  was  to  reliiKjuish  her  soviM-eignty  over  Cuba 
and  transfer  it  to  the  United  States,  and  t)y  which  the  "  relin»|uish- 
ment  and  transfer "  were  declared  to  embi-ace  "all  the  i)rerogatives, 
powers,  and  rights"  of  Spain  over  the  island  and  its  inhal>itants,  and 


352  sovekkignty:  its  acquisition  and  loss.  [§  97. 

"•all  cliiirsxes  {iiid  ohlio-jitions  of  evorv  kind  in  existence  at  the  time  of 
tile  liititication  of  thi.s  treaty  of  peace,  which  the  Crown  of  Spain  and 
her  authorities  in  the  island  of  Cut)a  may  have  contracted  hiwfully  in 
the  <'xercise  of  the  sovereig'nty  hereby  reliniiuished  and  transferred, 
and  which  as  such  constitute  an  inte^^ral  i)art  thereof."  For  the  pur- 
j)os('  of  ascertninin*^  what  wei'e  such  •'charo-es  and  obligations,"  it 
was  proposed  to  be  laid  down  that  they  "must  have  been  h>vied  and 
imposed  in  constitutional  form  and  in  tlu>  exercise  of  its  legitimate 
powers  by  the  Crown  of  S])ain.  as  the  sovereign  of  the  Ishmd  of 
C'id)a,  or  by  its  lawful  authoi-ities  in  the  exercise  of  their  respective 
powers  prior  to  tiie  ratification  of  this  treaty,"  and  that  th(n'  must 
have  l>e(Mi  created  *' for  the  service  of  tiie  Island  of  Cuba,  or  charge- 
able to  its  own  individual  treasury."  It  was,  however,  tol)e  cxpressl}^ 
declared  that  they  should,  within  these  limitations,  include  ""all  del)ts, 
of  whatsoever  kind,  lawfid  charges,  the  salaries  or  allowances  of  all 
emplov«>es.  civil  and  ecclesiastical,  who  shall  continu'3  to  render  serv- 
ices in  the  Island  of  Cuba,  and  all  })ensions  in  the  civil  and  military 
sei-\ices.  and  of  widows  and  or|)hans." 

And  it  was  proposed  that  similar  stipulations  should  be  inserted  with 
regard  to  Porto  Rico. 

The  American  commissioners,  Oct.  IL.  181>8,  rejected  thi^se  pro- 
]K)sals,  on  the  ground  that  they  appeared  to  convey  not  a  pi'oposition 
to  ••  relinipiish  all  claim  of  sovereignty  over  and  title  to  Cuba,""'  but  in 
substance  a  proposition  to  "  transfer ''to  the  Cnited  States  and  in  turn 
to  Cuba  *'  a  mass  of  Spanish  obligations  and  charges."  *'  It  is  difficult," 
added  the  American  commissioners,  "to  p(>rceive  by  what  logic  an 
indebtedness  contracted  for  any  purpose  can  be  deemed  part  of  the 
stnereignty. of  Spain  over  the  island  of  Cuba.  In  the  article  proposed 
it  is  attempted  to  yoke  with  the  transfer  of  soxereignty  an  obligation 
to  assume  an  indebtedness  arising  out  of  the  relations  of  Spain  to 
(yu))a.  The  unconditional  relin(|uishment  of  sovereignty  by  Spain 
stipulated  foi-  in  tiie  protocol  is  to  t)e  changed  into  an  engagement  by 
the  Cnit(Ml  States  to  accept  th(^  sovercMgnty  ])urdened  with  a  larj^e 
mass  of  outstanding  iiuh^btcdnsss.  It  is  proper  to  say  that  if  during 
the  negotiations  resulting  in  the  conclusion  of  the  ])rotocol  Spain  had 
j)roposed  to  add  to  it  sti|)ulations  in  regard  to  Cuba  such  as  those  now 
|)ut  forward,  the  ])roj)()saI,  unless  abandoned,  would  have  terminated 
the  negotiation^.  The  Amei'ican  commissioners.  thei"efore,  speaking 
for  their  (iovcinment.  nmst  decline  to  accei)t  the  burden  which  it  is 
now  proposed  shall  l>e  gi'atuitously  assumed."  (S.  Doc.  62,  55  Cong. 
;-;  scss.,  part  2,  pp.  L>2,  2S.  m-'M.  44-45.) 

•'11.    The  cession  and   reliiKiuisiunent  of  sovereignty  embraces  the 

cession  and  reliiKiuishment  of  the  rights  and  ot)lig'a- 
Spanish  argu-        .  ^.i.    ^-         -4^ 

^  tioiis  constltutllii'-  it. 

ment.  _  '^ 

•"The  idea  of  tiie  sovereig'nty  of  a  state  was  never 
confounded  in  the  ancient  world,  and  much  less  in  the  modern  and 


§  9T.]  THE    CUBAN    DEBT.  353 

Christian   world,   with  the  idea  of   indixidual  or  private  ownership. 
Much  less  still  with  the  authority  of  the  master  over  the  slave. 

*'The  sovereign,  it  is  true,  has  preroo;atives  and  riohts  ovei-  the  ter- 
ritory and  its  inhabitants:  but  these  preroo;atives  and  rights  attach  to 
him  not  for  his  own  satisfaction  and  enjoyment,  ))ut  foi-  the  good  gov- 
ernment and  the  welfare  of  the  people  subject  to  his  rule.  For  this 
reason  the  rights  of  the  sovereign  ])econie  obligations  with  respect  to 
liis  subjects.  The  sovereign  is  bound  to  see  that  the}'  have  good  gov- 
ernment, and  to  their  progress  and  prosperity'.  The  sovereign  is  not 
the  owner  of  the  tax  proceeds  or  of  the  revenues  he  receives  from  his 
subjects,  to  be  used  for  his  own  personal  benefit,  but  to  meet  with  them 
all  public  necessities  and  attend  to  the  public  welfare.  The  fulfillment 
of  these  obligations  is  the  foundation  of  the  legitimacy  of  his  authority 
to  enter  into  conventions  and  agreements  of  all  kinds  with  third  parties, 
to  contract  all  the  obligations  necessary  to  raise  means  for  the  good 
administration  of  the  government  of  his  subjects,  and  to  attend  to  the 
public  service  in  the  best  possible  manner. 

'•These  obligations  exist  from  the  moment  the}'  are  contracted  until 
they  are  fultilled.  And  it  is  perfecth'  self-evident  that  if.  dui'ing  the 
period  intervening  between  the  assumption  by  a  sovereign  of  an  obli- 
gation and  the  fulfillment  of  the  same,  he  shall  cease  to  be  bound 
thereb}'  through  relinquishment  or  any  other  lawful  conveyance,  the 
outstanding  obligation  passes  as  an  integral  part  of  the  sovereignt}' 
itself  to  him  who  succeeds  him.  It  would  be  contrary  to  the  most  ele- 
mentary notions  of  justice  and  inconsistent  with  the  dictates  of  the 
universal  conscience  of  mankind  for  a  sovereign  to  lose  all  his  rights 
over  a  territory  and  the  inhabitants  thereof,  and  despite  this  to  con- 
tinue bound  by  the  obligations  he  had  contracted  exclusively  for  their 
legime  and  government. 

''These  maxims  seem  to  be  observed  by  all  cultured  nations  that 
are  unwilling  to  trample  upon  the  eternal  principles  of  justice,  includ- 
ing those  in  which  such  cessions  were  made  by  force  of  arms  and  as  a 
reward  for  victories  through  treaties  relating  to  territorial  cessions. 
Rare  is  the  treaty  in  which,  together  with  the  territory  ceded  to  the 
new  sovereign,  there  is  not  conveyed  a  proportional  part  of  the  gen- 
eral obligations  of  the  ceding  state,  which  in  the  majority  of  cases 
have  been  in  the  form  of  a  public  debt. 

"  But  the  case  to  which  the  convention  to  be  framed  by  this  con- 
ference refers  is  clearer  still.  It  is  not  the  purpose  here  to  transfer, 
together  with  the  sovereignty  over  Cuba  and  Porto  Rico,  a  propor- 
tional part  of  the  obligations  and  general  charges  of  the  mother  coun 
try,  but  onh'  the  obligations  and  charges  attaching  individuallv  to  the 
islands  ceded  and  transferred.  When  not  treating  of  general  obliga- 
tions common  to  all  the  territories  subject  to  the  sovereign  contract- 
ing the  same,  but  of  the  special  obligations  of  the  particular  KnTitories 

H.  Doc.  551 23 


354  sovkkekjnty:  its  acquisition  and  loss.  [>5  97. 

oocU'd  Avhich  were  contracted  by  its  legitimate  authorities,  in  no  single 
case,  not  even  in  those  treaties  in  which  the  victor  has  shown  himself 
most  merciless  towards  the  A'anquished,  have  the  individual  and  sepa- 
rate charges  and  obligations  of  a  ceded  territory  failed  to  pass  there- 
with. Thus  it  may  ])e  considered  as  an  absolutely  essential  condition 
that  the  cession  of  territory  carries  with  it  the  cession  of  the  depart- 
mental, conmmnal,  and.  generally  speaking,  individual  obligations 
and  debts  of  the  ceded  territory.  The  Great  Conqueror  of  this  cen- 
tuiv  never  dared  to  violate  this  rule  of  eternal  justice  in  an}-  of  the 
treaties  he  concluded  with  those  sovereigns  whose  territories  he  appro- 
priated in  whole  or  in  part,  as  a  reward  for  his  victories. 

•'Very  well;  it  must  be  recorded  that  the  sovereignty  of  Spain 
never  ceased  to  administer  its  colonies  in  America,  from  the  time  of 
the  discovery,  separate  from  the  mother  countr}-.  Spanish  America 
was  always  governed  from  the  capital  of  the  monarchy  by  a  special 
council  called  'Council  of  the  Indies,'  which  in  no  wise  interfered  in 
the  regime  and  government  of  the  Peninsula,  which  was  under  a  coun- 
cil designated  as  the  'Council  of  Castile.' 

•"The  territory  discovered  ))y  Colum})us  and  other  illustrious  Span- 
ish explorers  wlio  have  rendered  such  great  though  not  always  appre- 
ciated services  to  civilization  l)eing  divided  into  vice-royalties  and 
cajjtaincies-general.  each  of  these  small  states  collected  its  own  reve- 
nues and  met  its  own  expenses,  or  contracted  ol)ligations  to  meet  the 
necessities  of  its  own  separate  government;  and  when  one  of  these 
territories  found  itself  with  a  permanent  deiicit,  as  w^as  the  case  in  the 
island  of  Cu})a,  the  nearest  sister-colony  came  to  its  rescue.  The  vice- 
royalty  of  ^lexico  from  ITHO  to  18(>6  annually  assisted  the  island  of 
Cuba  with  heavy  sums  for  its  governmental  needs  and  the  develop- 
ment of  its  natural  resoui-ces,  at  the  time  unexploited,  which  expenses 
it  could  not.  at  such  tim(\  meet  from  its  own  revenues.  Not  less  than 
los  millions  of  ])esos  came  into  Cubii  from  Mexico  during  that  period, 
this  assistan((>  being  knoAv'n  in  the  Spanish  colonial  administration 
luidcr  the  nani(^  of  '  S/'f  >///(//>  de  ^[i^,ric<)' 

"  During  the  present  century  S})ain  carried  to  the  last  extreme  this 
system  of  the  separate  and  independent  administration  of  its  colonies. 
The  ministiy  of  the  colonies  was  the  department  where  this  adminis- 
tration \v:is  centin-ed.  P^ach  colony  had  anmially  its  own  budget  and 
deficits.  When  its  own  i-evenues  were  not  sufficient  to  cover  its  own 
expenses,  these  W(>i'e  met  by  special  o^xM-ations  in  the  wa}'  of  consoli- 
dated, mortgage,  or  floating  debts,  and  were  chargeable  to  the  colony 
for  whose  benefit  such  operations  were  conducted. 

••  And  \\w  s(>paration  of  the  administration  of  the  Peninsula  and  the 
colonies  was  for  a  long  time  so  com])lete  that  the  body  of  public 
employees  in  the  executive  and  judicial  services  of  the  colonies  was 
sepiirate  and  inde])endent.  to  the  extent  that  these  employees  had  not 


§  97.]  THE    CUBAN    DEBT.  855 

the  legal  capacity  to  be  included  in  the  siuiilar  hierarchical  bodies  of 
Spain,  or  to  discharge  therein  like  functions. 

"This  regime  is  the  one  under  whit-h  Si)ain  has  ))een  administering 
Cuba  up  to  the  present  time. 

*' We  are  well  aware  that  outside  of  Spain  grave  errors  are  fallen 
into,  owing  to  the  Spanish  colonial  system  being  unknown:  hut  it  is 
high  time,  and  above  all  at  this  juncture  is  it  necessary,  that  these 
errors  be  dissipated  by  comparing  them  with  the  actual  facts  and  the 
provisions  of  Spanish  laws.  Cuba  and  Porto  Rico  have  never  been 
included  in  the  general  budget  of  the  Spanish  nation,  nor  have  their 
revenues  ever  figured  therein,  which  is  also  true  of  their  expenditures. 
All  outstanding  obligations  that  have  been  legalh"  contracted  for  the 
service  of  Cuba  and  Porto  Rico,  and  which  are  chargeable  to  their 
individual  treasuries,  always  distinct  and  separate  from  the  treasur}^ 
of  the  Peninsula,  are  Cuban  or  Porto  Rican  obligations,  that  is,  local 
obligations,  solely  and  exclusively  affecting  the  territory  of  the  islands 
and  their  inhabitants. 

"  What  has  been  said  up  to  this  point  regarding  the  nature  of  the 
colonial  obligations  and  those  bound  thereby,  has  never  been  disre- 
garded (to  their  honor  be  it  said)  by  the  Spanish-American  peoples. 
They  achieved  their  independence  through  their  own  efforts,  and  the 
majority  of  them,  before  Spain  had  recognized  it,  had  by  prior  and 
solemn  act  of  their  legislatures,  declared  as  their  own  and  as  having 
preference  those  debts  which  the  Crown  of  Spain  had  contracted  dur- 
ing the  continuance  of  its  sovereignty  for  the  service  of  such  terri- 
tories, and  which  debts  were  recorded  in  their  respective  treasury 
books. 

"Very  few  of  the  Spanish- American  Republics  delayed  so  honorable 
a  declaration  until  the  mother  country  had  recognized  their  independ- 
ence, as  was  said  b}"  the  Argentine  Republic  in  the  treaty  concluded 
with  Spain  on  September  21.  1863.  and  b}'  Uruguay,  in  that  con- 
cluded on  July  19,  187<i:  "Just  as  the}'  acquired  the  rights  and  privi- 
leges belonging  to  the  Crown  of  Spain,  they  also  assume  all  its  duties 
and  obligations.' 

"Note  that  the  Spanish-American  Republics  Avithout  exception 
recognized  and  assumed  as  their  own  these  debts  of  every  I'ind  n'hat- 
soeeer^  specifying  them  in  the  treaty  of  peace  with  Bolivia  of  fluly  21, 
1847,  wherein  it  is  stated  that  they  '  include  all  debts  for  pensions, 
salaries,  supplies,  advances,  transportation,  forced  loans,  deposits, 
contracts,  and  any  other  debt  incurred  during  war  times  or  })rior 
thereto,  chargeable  to  said  treasuries;  provided  they  were  contracted 
b}"  direct  orders  of  the  Spanish  Government  or  its  constituted  authori- 
ties in  said  t(»rritories.' 

"Spain  did  not  recognize  the  independence  of  any  American  state 
which  had  previously  been  her  colony  save  upon  this  condition,  which 


35B  sovereignty:  its  acquisition  and  loss.  [§  97. 

*  . 

tliosc  states  spontaneously  incorporated  in  their  respective  treaties,  as 

of  riojit  they  sliould. 

■■  Her  jit;htand  her  dii^nity  will  not  permit  her  to  recognize — with- 
out this  condition,  which  now  more  than  ever  if  possible  is  still  just 
and  proper — the  independence  of  the  Cuban  and  Porto  Rican  peoples, 
which  th(\v  have  not  been  able  to  achieve  by  their  own  unaided  etforts. 

•'  Spain  is  disposed  to  cede  the  sovereignty  over  Porto  Kico  and 
other  islands  of  the  West  Indies,  and  to  relinquish  the  sovereignty 
over  the  island  of  Cuba,  all  in  favor  of  the  United  States,  which  shall 
accept  the  same:  she  placing  this  sovereignty  at  their  disposal  in  the 
condition  in  which  she  now  holds  it,  and  therefore  with  the  rights 
and  charges  at  present  constituting  it.  She  bound  herself  to  this  b}^ 
Articles  I.  and  II.  of  the  protocol  signed  at  Washington  on  August  12 
last,  and  this  is  what  she  desires  to  carry  out  with  the  strictest  faith  in 
the  present  treaty." 

Meniorandum  of  Spaiiisli  Peace  Commission,  Paris,  Oct.  11,  1898,  8.  Doc.  62, 
o5  Cong.  3  SCS9.,  part  2,  pp.  41-44. 

■■'Phe  second  part  of  the  Spanish  memorandum  is  devoted  to  an  argu- 
ment to  maintain  the  proposition  that  '  the  cession  and 

American  reply.  ....  -        ,•  •       .  i  -i 

reinKjuishment  or  sovereignty  embraces  the  cession 
and  relin([uishment  of  the  rights  and  obligations  constituting  it.' 

••The  American  Commissioners  are  not  di.sposed  to  comment  upon 
the  indetiniteiuvss  of  this  proposition,  or  upon  the  fallacies  involved  in 
treating  the  obligations  which  a  sovereign  may  incur  in  the  exercise  of 
his  sovereignty  as  a  part  of  the  sovereignty  itself.  National  sovereignty 
[snJx  ri(ii((i  iiadoiwJ),  as  defined  by  high  Spanish  authority  {Xot'ishno 
Diccinnni-Ki  eiidclojx'dico  de  Ja  IriKjua  cadclldnn.  por  I).  Delfin  Donadin 
y  Buignau.  based  on  the  Dictionary  of  the  Spanish  Academy),  is  'the 
I'igiit  which  a  nation  has  of  organizing  the  public  powers  in  such  a 
way  as  it  may  deem  advisal)le.'  This  right,  though  it  includes  the 
power  to  contract  ()))ligations,  is  in  no  sense  com})osed  of  them.  The 
thing  done  in  the  exercise  of  sovereignty  is  not  a  part  of  the  sover- 
eignty itscdf :  the  power  to  create  is  not  the  thing  created.  Nor  is  it 
possible  to  shut  our  eyes  to  the  fact  that  in  the  Spanish  memorandum 
the  term  obligations  is  used  indiscriminately  in  respect  of  two  different 
things,  namely,  the  duties  which  a  sovereign  as  such  owes  to  his  sub- 
jects, and  the  debts  which  he  may  specially  contract  in  the  exercise  of 
his  sovereign  power  for  his  own  ])urposes. 

••^Vith  these  preliminary  ol)servations,  the  American  Commissioners 
pr()(C(>d  to  the  consideration  of  the  specific  matter  before  them. 

•'The  American  Commissioners  note  the  decdaration  in  the  Spanish 
memorandum  that  there  is  no  purpose  now  to  transfer  with  the  sover- 
eignty of  Cul)a  and  Porto  Rico  a  proportional  part  of  the  national  debt 
of  Spain,  but  *  only  the  obligations  and  charges  attaching  individually  to 


§97.]  THE    CrBAN    DEBT.  357 

the  islands.'  which  obligations  and  charges  it  likens  to  the  local  debts 
which  pass  with  ceded  territory.  It  appears,  however,  In'  the  expla- 
nation given  in  the  nienioranduni  of  the  origin  of  these  charges  and 
obligations,  and  of  the  manner  in  which  they  were  contracted,  that  they 
include  the  whole  of  what  is  commonly  called  the  Cuban  debt.  The 
American  Commissioners,  therefore,  while  reaffirming  their  position  as 
to  the  exclusion  l)y  the  protocol  of  an}'  proposal  for  the  assumption 
of  such  charges  and  obligations,  will  examine  the  subject  in  some  of 
its  aspects. 

"It  is  true  that  the  financial  department  of  the  Island  of  Culm,  com- 
monly called  the  'Cuban  Treasury,'  was  not  a  branch  of  the  Spanish 
Treasury,  but  it  is  equally  true  that  it  was  accountable  to  the  Spanish 
Secretary  for  the  Colonies,  the  Mltiistro  <le  Ultraiaai\  and  that  it  was 
managed  by  a  body  of  officials  appointed  by  the  Crown,  at  whose  head 
was  a  high  functionary  called  Intt^itdeiite  (rt^nei'aJ de  Hacienda.  In  each 
year  a  budget  was  made  up  b}^  the  Spanish  Colonial  Secretary  on  data 
furnished  by  the  [ntendeide  General,  and  this  budget  was  submitted  to 
and  acted  upon  ))y  the  Cortes.  If  in  an}'  year  the  revenues  collected 
in  Cuba  were  insufficient  to  meet  the  burdens  imposed  upon  them,  the 
deficit  was  charged  to  the  island,  and  fornaed  a  new  item  of  the  Cuban 
debt.  It  thus  appears  that  the  finances  of  the  island  were  exclusively 
controlled  ])y  the  Spanish  Government,  and  that  the  debt  was  in  no 
sense  created  b}'  Cuba  as  a  province  or  department  of  Spain,  or  by  the 
people  of  the  island.  In  reality  it  is  notorious  that  the  denial  to  Cuba 
of  any  financial  autonomy  and  of  any  power  to  protect  herself  against 
the  imposition  by  Sjmnish  officials  of  enormous  burdens  for  purposes 
foreign  and  advers*?  to  her  interests,  has  been  the  most  prolific  source 
of  discontent  in  the  island.  The  debt-creating  power,  such  as  com- 
monly belongs  to  communes  or  municipal  corporations,  never  was  dele- 
gated to  Cuba.  Such  a  thing  as  a  Cuban  obligation,  created  by  the 
island  in  the  exercise  of  powers  either  inherent  or  delegated,  is  unknown 
to  the  markets  of  the  world. 

'■'Having  briefly  sketched  the  system  of  financial  administration  with 
respect  to  Cuba,  we  may  consider  the  origin  of  the  del)t, 

'"'  Prior  to  1861  no  so-called  Cuban  debt  existed. 

'"  The  revenues  of  the  island  were  as  a  rule  far  more  than  sufficient  to 
pa}'  the  expenses  of  its  government,  and  produced  in  each  year  a  sur- 
plus. This  surplus  was  not  expended  for  the  benefitof  the  island,  but 
was  sent  to  Madrid.  The  surpluses  thus  disposed  of  amounted,  from 
1856  to  1861  inclusive,  to  upward  of  ^20,000,000. 

"  In  1864,  in  order  to  meet  the  national  expenses  of  the  attempt  to 
'reincorporate'  San  Domingo  into  the  Spanish  dominions,  and  of  the 
'expedition  to  Mexico,'  the  Spanish  authorities  issued  bonds  to  the 
amount  of  §8,000.000.  Subsequently  new  loans  were  made,  so  that 
the  so-called  Cuban  debt  had  swollen  hy  1868  to  Sl8,000,00(>. 


358  sovereignty:  its  acquisition  and  loss.  [§97. 

"Ill  that  year  tlio  ton  years' war  for  C'u))an  independence  broke  out, 
a  wai"  i)r()diued  hy  causes  so  j^enenilly  conceded  to  be  just  as  to  need 
no  exjjosition  on  this  occasion.  All  the  expenses  of  this  war  were 
imposed  upon  Cuiia.  so  that  in  188f».  according  to  a  statement  made  at 
Madrid  in  that  year  ])y  a  Spanish  Secretary  for  the  Colonies,  the 
so-called  C'u))an  debt  amounted  to  upward  of  ^ITo.OOO.OOO. 

■•Sul)se(iuently  the  Spanish  Government  undertook  to  consolidate 
these  del)ts.  and  to  this  end  created  in  188H  the  so-called  Billetes  htjjo- 
tcatr/'ns  Jr  /(/  Ishi,  dc  Cxha.  to  the  amount  of  620. <•()<},(  »IK>  pesetas,  or 
$124.<>(»o.<MKi.  The  Spanish  Government  undertook  to  pay  these 
l>onds  and  the  interest  thereon  out  of  the  revenues  of  Cuba,  but  the 
nationtil  character  of  the  debt  was  shown  1)}^  the  fact  that,  upon  the 
face  of  the  bonds,  'the  Spanish  nation'  {la  Xaeion  espanola)  cruaran- 
teed  their  payment.  The  annual  charj^e  for  interest  and  sinking  fund 
on  account  of  this  debt  amounted  to  the  sum  of  31*.ll>l,oOO  pesetas,  or 
$T.88s.:><Ki.  which  was  disbursed  through  a  Si)anish  tinancial  institu- 
tion, called  the  B(H(<i>  Jlispano- Colon iol.  which  is  said  to  have  collected 
daily  from  the  custom-house  at  Havana,  through  an  agency  there 
established,  the  sum  of  $33.83J>. 

"In  189<>  a  new  issue  of  l)onds  was  authorized  by  the  Spanish  Gov- 
ernment, to  the  amount,  as  it  is  understood,  of  8T5,()0(>,0(i(»  pesetas, 
or  Sl75.(»0(».uOu.  with  the  same  guarantee  as  before,  apparently  with 
a  view  to  refund  the  prior  debt,  as  well  as  to  cover  an}-  new  debts 
contracted  between  1886  and  181HI,  It  .seems,  however,  that  onl>'  a 
small  number  of  these  bonds  had  been  disposed  of  when  in  February', 
1805.  the  last  insurrection  and  movement  for  independence  broke  out. 
The  Government  of  Spain  then  proceeded  to  issue  these  new  bonds 
for  the  purpose  of  raising  funds  with  which  to  suppress  the  uprising, 
so  that  those  outstanding  on  January  1,  18J>8,  amounted,  according  to 
published  reports,  to  8r)8..").")(i.O(tO  pesetas,  or  $17l.7lo,0(»0.  In  addi- 
tion to  th(\se  a  further  loan,  known  as  the  '  Cuban  War  P^mergenc}^ 
Loan."  was.  as  the  American  Conmiissioners  are  advised,  floated  to  the 
amount  of  8<Mi.(»(i(».(t0ti  pesetas,  or  ^160,000,000,  represented  by  what 
are  called  'five  per  cent  peseta  bonds.' 

"Although  it  does  not  appear  that  any  mention  is  made  in  these 
bonds  of  the  revenues  of  Cuba,  it  is  understood  that  they  are  regarded 
in  Spain  as  ])r()perly  constituting  a  part  of  the  'Cuban  Debt,'  together 
with  various  unliijuidated  debts,  large  in  amount,  incurred  by  the 
Spanish  authorities  in  opi)osing  by  arms  the  independence  of  Cuba. 

"From  no  point  of  view  can  the  de})ts  above  described  be  con- 
sidered as  local  deljts  of  Cuba  or  as  debts  incurred  for  the  benefit  of 
Cul)a.  In  no  sense  arc  they  obligations  properly  chargeable  to  that 
island.  They  are  del)ts  created  by  the  Government  of  Spain,  for  its 
own  purposes  and  through  its  own  agents,  in  whose  creation  Cuba 
had  no  voice. 

"From  the  moral  i)oint  of  view,  the  proposal  to  impose  them  upon 


§  97.]  THE    CUBAN    DEBT.  359 

Cuba  is  equally  untenable.  If,  as  is  sometimes  asserted,  the  struggles 
for  Cuban  independence  have  been  carried  on  and  supported  by  a 
rainorit\'  of  the  people  of  the  island,  to  impose  upon  the  inha])itants  as 
a  whole  the  cost  of  suppressing  the  insurrections  Avould  be  to  punish 
the  many  for  the  deeds  of  the  few.  If,  on  the  other  hand,  those  strug- 
gles have,  as  the  American  Commissioners  maintain,  represented  the 
hopes  and  aspirations  of  the  })ody  of  the  Cuban  people,  to  crush  tlu^ 
inhabitants  by  a  burden  created  by  Spain  in  the  eti'ort  to  oppose  their 
independence  would  l)e  even  more  unjust. 

"The  American  Commissioners  deem  it  unnecessary,  after  what  has 
been  stated,  to  enter  into  an  examination  of  the  general  references, 
made  in  the  Spanish  memorandum,  to  cases  in  which  de})ts  contracted 
by  a  state  have,  upon  its  absorption,  been  assumed  l)v  the  absor)>ing 
state,  or  to  cases  in  which,  upon  the  partition  of  territory,  debts  con- 
tracted b}"  the  whole  have  l)een  by  special  arrangement  apportioned. 
They  are  conceived  to  be  inapplicable,  legally  and  morally,  to  the  so- 
called  '  Cuban  debt,'  the  l)urden  of  which,  imposed  upon  the  people  of 
Cuba  Avithout  their  consent  and  ])y  force  of  arms,  was  one  of  the 
principal  wrongs  for  the  termination  of  which  the  struggles  for  Cu))an 
independence  were  undertaken. 

''The  American  Commissioners  have  deemed  it  due  to  the  Spanish 
Commissioners  and  to  themselves  to  make  these  observations  upon  the 
general  subject  of  Cuban  •  charges  and  obligations.'  apart  from  the 
special  circumstances  under  which  the  present  negotiations  were  begun. 
But.  as  they  have  heretofore  stated,  they  consider  the  subject  to  ))e 
disposed  of  beyond  all  question  l)y  the  Protocol.  The  suggestion  that 
their  Government  should  assume,  either  for  itself  or  for  Cuba  or  Porto 
Rico,  the  Inirden  of  the  'charges  and  obligations'  now  in  question  was 
not  put  forward  during  the  negotiations  that  resulted  in  the  conclusion 
of  that  convention,  nor,  if  it  had  ))een  so  put  forward,  would  it  have 
been  for  a  moment  entertained  ])y  the  Ignited  States. 

^'  From  unselfish  motives,  of  which  it  is  unnecessary  to  make  a 
renewed  declaration,  the  Government  of  the  United  States,  at  great 
sacrifice  of  life  and  treasure,  has  prosecuted  the  conflict  which  followed 
its  demand  for  the  reliiupiishment  by  Spain  of  sovereignty  over  Cuba. 

*■•  One  of  the  results  of  that  conflict  is  the  unconditional  agreement, 
embodied  in  the  flrst  article  of  the  Protocol,  that  Spain  "  will  relin- 
(juish  all  claim  of  sovereignty  over  and  title  to  Cuba.'  Upon  the  sim- 
ple fulfllment  of  that  stipulation  the  American  Commissioners  are 
obliged  to  insist." 

Memoraiiduiu  ot  American  Peace  Conuiiissiiin,  Paris,  Oct.  14,  ISilS,  S.  ])oc.  02, 
55  Cong.  ?>  sess.,  ])art  2,  pp.  48-50. 

'"  The  American  Commissioners,  having  listened  with  great  respect  to 
the  arguments  orally  urged  ])y  the  Spanish  Connuissionei-s  in  support 
of  the  articles  oft'ei-ed  bv  them,  as  well  as  didv  considered  the  written 


300  sovereignty:  its  acquisition  and  loss.  [§97. 

iiKMiioninduin  suhniitted  in  support  of  the  .same,  must  adhere  to  the 
it'jcttiou  thereof  as  stated  in  the  memorandum  of  the  American  Com- 
missioners read  to  the  Commission  and  attached  to  the  protocol  of  the 
1  Itli  instant.  The  chief  additional  reason  adduced  in  the  oral  presen- 
tation for  the  acce])tance  of  sovereignty  l)y  the  United  States  in  Cuba 
is  that  \vith(.ut  such  acceptance  the  people  of  Cuba  notably  of  Spanish 
t)riuiii  will  have  no  protection  of  person  and  propert3%  The  United 
States  recognizes  in  the  fullest  measure  that  in  requiring  the  relinquish 
ment  of  all  claim  of  Spanish  sovereignty  and  the  evacuation  of  the 
Island  of  Cuba  it  has  assumed  all  the  obligations  imposed  by  the  canons 
of  inteiiiational  law  and  flowing  from  its  occupation.  The  United 
States,  so  far  as  it  has  obtained  possession,  has  enforced  obedience  to 
law  and  th<>  preservation  of  order  by  all  persons.  It  has  no  disposition 
to  leave  the  island  a  prey  to  anarchy  or  misrule. 

'•  As  the  Spanish Conuuissioners  strenuously  urge  that  the  acceptance 
of  sovereignty  includes  the  assumption  of  the  so-called  Cuban  debt, 
and  as  it  is  evident  that  this  question  divides  the  Commission  and  staj'S 
its  ])rogress.  the  American  Commissioners,  having  carefully  considered 
the  ai'guments  of  the  Spanish  Commissioners,  nmst  again  and  iinall}" 
de<lin(>  to  accept  this  burden  (>ither  for  the  United  States  or  for  Cuba. 
In  the  articles  proposed  by  the  American  Commissioners  on  the  third 
instant  there  were  contained  certain  stipulations  which,  the  American 
Connnissionei's  l)elieved,  while  not  enlarging  the  Protocol,  would  effec- 
tually preserve  the  evidence  of  title  to  property  and  make  clear  the 
natui'c  of  ])u])lic  propei'ty  and  rights  included  in  the  relinquishment  of 
sovereignty  and  title.  It  having  been  urged  that  these,  no  less  than 
the  artich^s  proposed  ])v  the  Spanish  Commissioners,  enlarge  the  terms 
of  the  Protocol,  the  American  Commissioners  are  now  prepared,  for  the 
j)ui'p()se  of  disposing  of  the  question  of  Cuba,  Porto  Rico,  and  Guam, 
simply  to  embody  in  the  treaty  the  precise  stipulations  of  the  Protocol 
on  those  su))jects.  neither  adding  thereto  nor  subtracting  therefrom. 

*"Tiie  Americiin  Commissioners,  therefore,  offer  as  a  substitute  for 
the  articles  lieit>tofore  pi-esented  l)y  them,  the  following: 

■•  *  Ai'ticle  1.  S])iiin  hei'eby  relinciuishes  all  claim  of  sovereignty  over 
and  title  to  Ciil):i. 

"  "Article  II.  Spain  liei-el)y  cedes  to  the  United  States  the  Island  of 
Porto  Rico  and  other  islands  now  under  Spanish  sovereignty  in  the 
^^'est  Indies,  and  al>o  the  Island  of  (hiam  in  the  Ladrones.'" 

MciiKiraiiiluiii  of  Aiin-iicaii  I'cact-  Coiiimissioii    l*aris,  Oct.  17,  1898,  S.  Doc.  62, 
.').^  Coiijr-  •>  scss.,  part  -,  \i\>.  .■)■_'-."):!. 

•■The  American  Conuuissioners  also  reject  the  other  articles  of  the 

draft ,su))mitted  l)y  the  Spaniards. 

ej       er.       "'p}j(.y  ^[Q  „ot  admit  that  the  charges  and  obligations 

of  the  sovereign  which  proceed  exclusively  from  the  public  service  of  the 

colony  are  part  of  the  .sovereignty.     The  Spanish  Conmiission,  without 


§  ^'S'-]  THE    CUBAN    DEBT.  3f>l 

entering  upon  a  piirelj'  technical  discussion  of  the  (luestion  as  to  whether 
such  obligations  form  part  of  the  sovereignty  or  are  merely  an  effect 
of  the  exercise  of  the  sovereignty^  itself,  for  the  result  of  such  a  dis- 
cussion would  be  absolutely  without  effect  upon  the  point  on  which 
the  Commissioners  on  both  parts  do  not  agree,  will  simply  proceed 
briefly  to  set  right  the  facts  and  the  opinions  which  are  set  forth  in 
the  American  memorandum  of  the  14th  instant.  In  order  to  demon- 
strate that  the  colonial  obligations  of  Spain  in  Cuba  mnst  not  remain 
a  charge  upon  that  island,  the  American  Conunissioners  state  that 
these  obligations  were  contracted  ))y  the  Crown  through  the  medium 
of  its  officials  in  the  colony,  but  without  any  intervention  or  consent 
towards  such  obligations  on  the  part  of  the  colon}-. 

""It  is  true,  the  colonial  system  then  prevailing  in  Spain  did  not 
confer  upon  its  colonies  the  right  of  having  elected  Chambers  which 
would  administer  the  supreme  powers  in  conjunction  with  the  sover- 
eign. In  the  last  twenty  years,  however,  it  was  not  thus.  The  An- 
tilles had  representatives  in  })oth  Chambers  who  surely  intervened  in 
all  the  legislative  acts  bearing  upon  colonial  ol)ligations  without  ever 
protesting  against  their  lawfulness  or  binding  force.  Moreover, 
besides  this,  it  can  not  be  denied  that  so  long  as  this  system  prevailed, 
maintaining  all  the  characteristics  of  legality  established  at  the  time, 
the  acts  which  the  colonial  sovereignty  performed  within  the  powers 
with  which  it  was  invested  by  law,  were  perfectly  lawful,  and  carried, 
as  they  could  not  fail  to  do,  all  their  rightful  consequences.  It  is  a 
fundamental  maxim  of  public  law,  without  w  hich  the  credit  of  a  state 
could  not  exist,  because  the  validity  of  all  its  acts  would  always  be  at 
the  mercy  of  any  triumphant  revolutionary  movement  whatsoe\'er. 
The  wisdom  of  the  acts  of  the  sovereign  may  be  discussed,  but  when 
they  have  been  executed  by  virtue  of  his  attributes  and  in  the  solemn 
form  recognized  and  established  by  law,  their  lawfulness  and  binding 
character  are  not  a  matter  for  discussion. 

"This  principle  was  recognized  by  the  First  Consul  when  he  con- 
cluded his  first  treaty  of  August  24,  1801,  with  Bavaria.  In  its  fifth 
article  he  agreed  to  apply  the  provision  of  the  Luneville  treaty  of 
peace  with  regard  to  the  mortgage  debts  of  the  country  on  the  left 
bank  of  the  Rhine.  In  those  territories  there  were  Diets  which  par- 
ticipated in  the  power  of  the  sovereign,  and  for  this  reason  the  said 
treaty  of  Luneville  demanded  that  such  debts  should  hav(>  ))een  agreed 
to  b}'  them.  But  in  the  Duchy  of  Deux-Ponts  and  in  that  part  of  the 
Palatinate  of  the  Rhine  which  France  acquired  by  the  treaty  with 
Bavaria  there  was  no  such  governmental  institution,  and  therefore  the 
First  Consul  agreed  in  the  treaty  of  1801  that  the  debts  should  follow 
the  countries,  provided  they  had  been  registered  at  their  origin  l)y  the 
supreme  administrative  authority. 

"  If  the  position  opposed  to  this  doctrine  were  maintained,  the  Rus- 
sian people  might  be  exempted  from  meeting  all  the  obligations  that 


3(>2  ^sovereignty:  its  acquisition  and  loss.  [§97. 

may  haw  been  or  may  ])c  contracted  by  its  Emperors  while  this  sys 
tcm  sliould  obtain,  for  the  administration  and  government  of  their 
Empire,  in  the  event  of  the  abolition  of  the  autocratic  system  now 
prevailini»-  in  Kiissia.  The  United  Stat^^s  themselves,  w^ho  as  a  matter 
of  fact  continued  to  observe  after  their  emancipation  many  of  the  pro- 
visions of  law  enacted  previously  without  their  intervention  by  the 
power  of  the  mother  country,  would  have  to  return  to  Russia  Alaska, 
which  the  Emperor  sold  to  them  in  1867  without  the  intervention  in 
such  sale  of  the  inhabitants  of  the  country  thus  sold;  likewise  they 
should  return  to  Spain  Florida,  for  the  same  reason,  etc. 

••  If  in  order  that  a  del^t  ])e  lawful  it  be  necessary  that  the  people 
which  has  to  pay  the  same  should  intervene  when  it  is  incurred,  when 
the  law  does  not  confer  such  intervention,  how  much  more  necessary 
must  the  intervention  of  a  people  be  when  its  sovereign  sells  the  terri- 
tory which  it  inhal)its. 

"The  very  act  of  cession  of  sovereignty  over  the  Antilles  would  be 
tainted  with  nullity,  since  the  Cuban  and  Porto  Kican  peoj^les  have 
not  been  consulted  and  have  not  expressed  their  formal  assent  to  the 
Protocol  of  Washington,  Such  are  the  consequences  of  a  theor}^ 
which  in  the  heat  of  the  discussion  has  been  advanced  in  the  memo- 
randum of  the  American  Commissioners. 

"The  very  point  which  most  limits  the  freedom  of  action  of  sover- 
eigns in  the  conclusion  of  their  treaties  is  that  relative  to  the  debts  of 
their  states.  As  to  the  integrity  of  their  territory  and  even  as  to  their 
own  honor  they  may  bind  themselves  freely  and  validly  because  the\' 
dispose  of  what  is  their  own.  But  this  liberty  is  curtailed  when  their 
acts  immediately  reflect  on  the  lawful  rights  of  those  private  parties 
who  lawfully  accjuired  said  rights  under  the  protection  of  the  laws 
and  have  thereafter  had  no  part  whatsoever  in  the  conflicts  which  are 
solved  by  treaties,  and  should  conseciuently  not  suft'er  unduly  from  the 
ct)nsc(iuences  of  such  ti-«nities  to  the  ])rejudice  of  their  private  and 
legitimate  inti*rests. 

"  When  the  creditors  of  a  state  make  a  conti"act  with  the  same,  thej^ 
always  take  into  <nirnest  account  the  conditions  of  solvency  of  the  state 
to  which  they  lend  their  property.  Hence,  when  these  conditions  of 
solvency  are  im])aired  in  conse(|uence  of  territorial  cessions,  the  High 
Contracting  Parties  between  whom  these  cessions  are  eft'ected,  that 
which  makes  the  cession  as  w  tdl  as  that  which  ac(juires  the  ceded  terri- 
tory, always  endeavor  wholly  to  respect  such  rights  by  means  of  a 
])artition  of  the  obligation  between  the  territory  kept  by  the  ceding 
sovereign  and  the  territory  acipiired  l)y  the  sovereign  to  whom  it  is 
ceded.     This  is  what  has  been  done  in  the  treaties  of  territorial  cession. 

"  Hut  when  the  creditors  have  ])een  granted  by  the  very  certificate  of 
their  contract  a  <lirect  lien  on  certain  defined  property  or  certain  deflned 
income,  in  order  thus  to  recover  the  loaned  capital  and  its  legitimate 


§  97.]  THE    CUBAN    DEBT.  363 

interest,  the  sovereign  eannot  tlien,  without  first  reckoning-  with  their 
consent,  cede  or  freely  dispose  of  such  property  and  incomes  as  if  the\' 
were  his  full  and  exclusive  propert3\ 

"  If  a  sovereign  should  consent  thus  to  trample  upon  rights  which 
are  not  his  own,  those  to  whom  such  rights  appertain  would  not  he 
hound  to  submit  and  remain  without  appeal,  in  the  name  of  the  sacred 
principles  which  protect  private  propertv,  to  the  respect  of  what 
l)elongs  to  him,  whoever  he  may  be  who  has  in  his  power  that  which 
lawfully  belongs  to  him. 

"And  it  were  well  in  this  connection  formally  to  record  that  even 
granting  that  the  principle  sustained  by  the  Spani.sh  and  contested  by 
the  American  Commission,  to  wit,  that  the  colonial  debt  should  not  be 
chargeable  to  the  mother  country,  is  inadmissible,  this  could  never 
mean  that  Spain  should  now  assume,  with  respect  to  the  holders  of  that 
debt,  more  obligations  than  she  contracted  upon  creating  it.  And, 
therefore,  with  respect  to  that  part  of  the  debt  where  she  contracted 
onh"  a  subsidiary  obligation  to  pay  (since  at  issue  it  was  expressly 
secured  b}-  certain  and  determinate  revenues  and  receipts),  Spain  will 
have  the  right,  under  the  law,  to  consider  that  she  is  not  bound  to  pay 
such  debt  save  in  the  event  of  the  I'evenues  and  receipts  primarily 
hypothecated  to  the  pavment  thereof  proving  insufficient,  for  not  until 
then,  according  to  the  elementary  rules  of  law,  will  the  subsidiary 
obligation  she  contracted  be  enforceable. 

"Without  expatiating  to-day  on  the  information,  very  incorrect, 
which  is  set  forth  in  the  American  memorandum  concerning  the  Cuban 
debt,  the  Spanish  Commission  would  confine  itself  to  asserting  that  as  a 
general  rule  the  Island  of  Cuba  has  not  since  its  discovery  covered  its 
own  expenses. 

•'As  long  as  Spain  kept  the  American  colonies  the  island  was  sus- 
tained by  the  pecuniary  aid  of  her  sisters  and  especiallv  by  that  of  the 
Vice-Royalty  of  Mexico.  In  this  century,  for  a  very  few  years,  she 
had  a  surplus,  thanks  to  the  development  of  her  natural  resources,  at 
last  obtained  through  this  assistance,  and  it  is  true  that  this  surplus 
was  turned  over  to  the  treasury-  of  the  Peninsula.  But  with  this  excep- 
tion it  is  patent  that  the  general  accounts  of  the  Spanish  State  from 
1890-1>7  show  that  the  treasury  of  the  Peninsula  advanced  to  Cuba, 
in  the  j^ears  preceding  that  recent  period,  a  sum  amounting  to 
429,60:2, 013. 08  pesetas.  There  also  appears  an  advance  to  Porto  Rico 
of  3,220,488.67  pesetas,  and  to  Santo  Domingo  1,397,161.69  pesetas. 

"The  prosperity'  of  Cuba  was  of  short  duration,  for  the  greater  part 
of  the  time  from  the  daj's  of  Columbus,  b}-  reason  either  of  the  scarcity 
of  its  inha))itants  or  of  the  slaver^'  of  the  black  race  which  formed  the 
majority,  or  lastly  because  Spaniards  preferred  to  colonize  other  parts 
of  America,  the  island  was  unable  to  develop  its  natural  resources; 
and  it  was  nevertheless  constantly  necessary  to  e.\})end  in  the  island 


364  sovereignty:  its  acquisition  and  loss.  [§  9T. 

tho  laviro  sums  which  wore  required  for  the  establishment  of  reform 
and  tho  croatiou  of  tho  institutions  which  are  the  essential  conditions 
of  modern  life. 

"The  Spanish  Connnission  can  not  but  protest  against  the  assertion 
made  in  tho  American  memorandum  that  the  ten  years'  insurrection 
was  tho  outcome  of  just  grievances,  and  it  regrets  that  such  an  asser- 
tion should  have  been  made  without  a  necessity  which  would  have 
ro(juirod  it  unavoidably,  in  the  same  way  as  the  American  Conmiission 
would  surely,  and  with  good  reason,  regret  that  the  Spanish  Conmiis- 
sion should  say  anything  here  without  an  imperative  necessity  of  the 
justice  of  tho  rol)ollions  of  the  natives  of  the  immense  American  terri- 
tory which  the  United  States  had  so  often  to  suppress  with  an  iron 
hand,  and  if  it  should  also  say  anj^thing  of  the  right  by  which  the 
Southern  States  attempted  to  break  the  federal  bond  by  the  force  of 
arms. 

'*lt  is  usloss,  for  reasons  that  will  hereafter  be  stated,  for  the  Span- 
ish Conunissionors  to  take  up  the  concrete  discussion  of  the  divisions 
of  the  CUiban  debt  to  which  reference  is  made  in  the  American  memo- 
randum. Thev  understand  the  errors  that  may  have  found  their  way 
into  that  document,  because  it  is  ver}^  natural  that  tho  American  Com- 
missioners should  not  have  such  accurate  knowledge  as  is  requisite  for 
precise  judgment  of  the  acts  of  the  Spanish  administration  in  the 
Peninsula,  or  in  its  colonies. 

'•And  we  find  a  confirmation  of  this  in  the  facts. 

"In  regard  to  tho  argument  against  the  recognition  of  a  certain 
part  of  the  Cul^an  debt,  on  the  ground  that  the  rebellion  of  a  minor- 
ity of  tho  Cuban  people  to  obtain  their  independence  was  just,  we 
ha\e  oidy  to  make  the  following  remark: 

"Tho  insurgent  minority,  it  is  true,  rose  up  in  arms  to  secure  the 
ind^^pondence  of  tho  island.  The  United  States  erroneously  believed 
that  their  cause  was  just,  and  by  force  of  arms  caused  it  to  prevail 
against  Spain,  But  now  the  facts  have  shown  that  Spain  was  right, 
as  the  United  States  themselves  have  had  to  recognize  that  the  (vuban 
people  are  not  as  yet  in  such  conditions  as  are  necessary  to  entitle 
them  to  tho  enjoyment  of  full  liberty  and  sovereigntv.  It  is  upon 
this  ground  that  tho  United  States  have  decided  to  withhold  from  that 
people  tho  said  pi'iviloges  and  to  hold  them  under  American  control, 
until  th«\v  bocoino  abl«»  to  enjoy  that  liberty  prematurely  demanded 
by  them. 

■'The  Spanish  Commission  feels  bound,  furthermore,  to  call  the 
attention  of  the  American  Commission  to  tho  obligations  of  Porto 
Rico. 

"The  American  'memorandum'  which  is  now  answered  refers  exclu- 
siv»'ly  to  the  obligations  of  (Juba.     Is  this  omission  due  to  the  belief 


§  9T.]  THE    CUBAN    DEBT.  365 

that  as  the  .sov'ereignty  over  Porto  Rico  was  not  reliiKjuished  ))ut  ceded 
by  Spain  to  the  United  States,  it  must  be  convened  to  the  hitter  free 
from  burdens  of  all  kinds?  Is  the  principle  maintained  that  cessions 
of  territory,  for  whatev^er  causes,  whether  conc^uest.  or  a  mere  aj^ree- 
ment,  do  not  carry  with  them  !2»<o  frwto  all  the  burdens  which  encum- 
ber the  ceded  territory  i 

'"In  the  oral  discussion  the  American  Commissioners  stated  that  the 
Spanish  .Government  had  declared  that  no  debt  rested  on  the  smaller 
Antille.  The  Spanish  Commissioners  have  carefully  gone  over  all 
the  written  communications  that  have  passed  between  the  two  High 
Parties,  from  the  ultimatum  of  the  President  of  the  Union  of  April  20 
of  this  year  to  the  signing  of  the  protocol  in  Washington  on  August 
12  of  the  same.  In  none  of  them  have  they  found  a  suggestion  or 
trace  of  such  a  declaration.  And,  be  it  said  in  passing,  that  among 
other  obligations,  the  smaller  Antille  has  been  burdened  for  very  many 
years  with  a  part,  which  though  small  is  no  less  sacred,  of  the  perpet- 
ual and  truh'  just  charge  through  which  Spain,  in  the  name  of  America 
rather  than  her  own,  has  been  showing  her  gratitude  to  the  inmiortal 
Columbus,  who  discovered  it,  and  his  legitimate  descendants,  and, 
should  the  conclusions  of  the  American  Commissioners  prevail  and 
Spain  continue  paN'ing  it,  logic  would  place  the  United  States  in  the 
position  of  repudiating  it. 

"But  the  fact  is  that  the  discussion  upon  the  so-called  Cuban  debt 
seems  to  lack  opportuneness  at  the  present. 

*'The  American  Commissioners,  when  referring  to  the  principal 
items  of  the  said  debt,  doubtless  believed  that  the  Spanish  Commission 
had  suggested  in  its  draft  the  said  items  to  be  at  once  admitted  a.s 
colonial  debt  to  be  transferred  together  with  the  sovereignty  either  to 
Cuba  or  to  the  United  States;  and  this  is  the  capital  error  upon  which 
the  American  memorandum  is  based.  The  Spanish  Commissioners 
only  wish  that  the  principle,  up  to  this  time  always  admitted,  to  wit, 
that  a  debt  being  exclusively  the  debt  of  a  colony  and  affecting  its 
territory  goes  with  the  colon}-  itself,  be  also  recognized  in  this  treaty. 
The  American  memorandum  says  nothing  in  contradiction  of  this 
principle,  nor  do  the  Spanish  Commissioners  expect  that  anything  be 
now  said  against  it,  least  of  all  by  the  United  States,  whose  territory 
was  acquired  h\  them  not  only  with  their  blood,  but  also  with  the 
money  of  their  treasury.  There  are  publicists  who  maintain  that  the 
thirteen  original  States  paid  over  to  their  mother  country  fifteen  mil- 
lion pounds  sterling  (£15,000,000);  and  the  facts  are  official  that  the 
United  States  paid  to  France,  Spain,  the  Indian  nations,  and  Russia 
respectively  considerable  sums  of  money  for  Louisiana,  Florida,  the 
Indian  States.  Texas,  California,  and  Alaska.  This  instance  would  be 
the  first  one  in  the  history  of  the  United  State>,  in  which  they,  acting 


8Gr)  sovekekjnty:  its  acquisition  and  loss.  [§  9'<^- 

;it  viiriance  with  their  own  traditions,  should  iiave  g'ratuitously 
a('(iiiircd  a  territory  which  sooner  or  later  will  be  annexed  to  the 
Union. 

•'Fhe  case  of  the  ac({uisiti<)n  of  Texas,  identical  as  to  its  origin,  its 
process  and  its  end  with  that  of  the  Island  of  Cuba,  eloquently  shows 
that  th(^  policy  then  pursued  with  Mexico  by  the  United  States  is 
different  from  the  one  now  pursued  with  Spain.  In  the  case  of  Mexico 
the  American  armies,  also  in  su^jport  of  insurgents,  the  Texan  insur- 
gents, spread  themselves  over  the  territoiy  of  the  whole  Mexican 
Republic,  and  went  as  far  (a  fact  which  has  not  taken  place  in  Cuba) 
as  to  capture  the  national  capital.  The  United  States  demanded  then 
from  ^Mexico  the  independence  of  Texas  as  they  now  demand  from 
Spain  the  independence  of  Cuba,  and  furthermore  they  caused.  Mexico 
to  cede  to  them  New  Mexico  and  California,  as  now  they  cause  Spain 
to  cede  to  them  Porto  Rico  and  other  Spanish  islands  in  the  West 
Indies.  But  in  the  case  of  Mexico  they  did  not  ask  from  her  Govern- 
ment any  war  indemnity,  and  consented  not  only  to  pay  her  the  value 
of  the  territories  ceded  and  annexed  to  the  American  Empire,  but  also 
to  assume  the  payment  of  the  American  claims  then  standing  against 
Mexico. 

*■  In  the  case  of  Spain,  however,  they  have  demanded  from  her,  in 
the  way  of  war  indemnity,  the  cession  of  the  islands  above  mentioned, 
and  ask  now.  additionally,  that  the  burdens  which  encumber  those 
islands  as  well  as  their  sister  Cu))a  })e  thrown  on  the  mother  countr\% 
who  with  her  own  hands  introduced  them  into  the  life  of  the  civilized 
world. 

"The  only  wish  of  the  Spanish  Commissioners  is  that  the  principle 
above  ri'ferred  to  be  admitted  and  i-ecognized.  Its  practical  application 
may.  according  to  their  understanding  of  the  su])ject,  be  afterwards 
entrusted  to  a  Conunission  of  righteous  and  impartial  persons.  If  this 
Commission,  upon  examination  of  the  bill  of  items  to  be  filed  by  Spain, 
showing  what  ()})ligati()ns  ought  in  her  opinion  to  be  paid  by  either 
Cuba,  or  Porto  Rico,  sliould  decide  that  those  obligations  nuist  fall  on 
the  mother  coinitry.  S])ain  shall  submit  to  its  decision.  But  if  the 
Conunission  decides  that  the  whole  or  a  part  of  the  said  debts  ought  to 
be  paid  by  the  colony,  tliere  is  no  reason  why  the  United  States  in 
their  turn  should  not  also  sul)mit  to  the  award.  If  the  United  States 
feel  so  sure,  as  they  seem,  in  their  position,  they  can  not  see  any  danger 
in  assenting  to  the  })roposition  herei?j  made  by  the  Spanish  Conmiission. 
But  if  they  are  not  so  sure,  their  high  sense  of  justice  and  the  duty  of 
n's])r(t  which  they  owe  to  themselves  impose  upon  them  the  obligation 
of  causing  a  matter  of  mei-e  ])ecuniary  interest  to  be  made  subordinate 
to  th<^  sacred  cause  of  justice^. 

••And  in  order  to  show  to  the  American  Commission  that  the  Spanish 
Conunissioners  have  no  othei'  wish  than  the  one  stated,  and  that  their 


§  97.]    -  THE    CUBAN    DEHT.  367 

purpose  is  not  by  any  means  to  have  a  iixed  siun  adjudged  at  this  time, 
as  a  colonial  debt  to  be  paid  by  the  Spanish  Antilles,  they  have  decided 
to  withdraw  Articles  II. ,  lY.  and  V.,  as  drawn  up  by  them  in  their 
former  draft,  and  offer  as  a  substitute  for  the  three  a  single  article, 
reading  as  follows: 

'"Article  II. 

"'The  relinquisiiment  and  transfer  made  l)y  her  Catholic  Majest}- 
and  accepted  by  the  United  States  of  America  embrace: 

'"1.  All  the  prerogatives,  powers  and  rights  belonging  to  her 
Catholic  Majesty  as  a  part  of  her  sovereignty  over  the  Island  of  Cuba 
and  its  inhabitants. 

"  '2.  All  the  charges  and  pecuniary  o))ligations,  outstanding  at  the 
date  of  the  ratification  of  this  treaty,  which  upon  careful  examination 
of  their  origin,  their  purposes  and  the  conditions  of  their  creation, 
should  be  adjudged  according  to  strict  law  and  undeniable  equity  to 
be  different  from  the  charges  and  obligations  which  properly  and 
specificall}'  belong  to  the  Peninsular  treasury,  owing  to  their  having 
been  at  all  times  properly  and  specifically  belonging  to  Cuba. 

"*To  secure  the  careful  examination  provided  for  in  the  foregoing 
paragraph,  a  Commission  consisting  of  competent  and  impartial  per- 
sons shall  be  appointed  by  the  two  High  Contracting  Parties.  The 
manner  of  this  appointment  shall  be  determined  in  this  treaty  by  a 
separate  article.' " 

Meiiu^randum  oi  Sjianis^h  Peace  Commission,  Paris,  Oct.  2(3,  1898,  S.  Doc.  62, 
55  Cong.  3  sess.,  part.  2,  jip.  85-90. 

"In  the  Spanish  memorandum  an  effort  is  made  to  answer  that  part 

of  the  argument  submitted  >)v  the  American  Conmiis- 

American  response.     .  iu      i  i^u    •      j.      i.    •         u-   u    -i.    •  •    x    •      j 

sioners  on  the  lith  instant  in  which  it  is  maintained 

that  the  so-called  Cuban  debt  is  not  in  any  sense  a  debt  of  Cuba,  but 
that  it  is  in  reality  a  part  of  the  national  debt  of  Spain.  The  Ameri- 
can Commissioners  were  able  to  show  that  the  debt  was  contracted  )>y 
Spain  for  national  purposes,  which  in  some  cases  were  alien  and  in 
others  actually  adverse  to  the  interests  of  Cuba;  that  in  reality  the 
greater  part  of  it  was  contracted  for  the  purpose  of  supporting  a 
Spanish  army  in  Cuba;  and  that,  wdiile  the  interest  on  it  has  been  col- 
lected by  a  Spanish  bank  from  the  revenues  of  Cuba,  the  bonds  l)ear 
upon  their  face,  exen  where  those  revenues  are  pledged  for  their  pa}"- 
ment,  the  guarantee  of  the  Spanish  nation.  As  a  national  di^bt  of 
Spain,  the  American  Commissioners  have  never  (^[uestioned  its  validit3\ 
"The  American  Commissioners,  therefore,  are  notre(juired  to  main- 
tain, in  order  that  they  may  be  consistent,  the  position  that  the  power 
of  a  nation  to  contract  dc^bts  oi-  the  obligation  of  ji  nation  to  pay  its 
del)ts  depends  upon  the  more  or  less  popular  form  of  its  government. 
They  would  not  question  the  validity  of  the  national  debt  of  Russia, 


8<)8  sovereignty:  its  acquisition  and  loss.  [§  97. 

because,  as  the  Spanish  ineniorandum  .states,  an  autocratic  sj^stem  pre- 
\ails  in  that  eountiv.  Much  less  do  the  American  Commissioners 
maintain  that  a  nation  can  not  cede  or  relinquish  sovereignty  over  a 
])art  of  its  tenitory  without  the  consent  of  the  inhabitants  thereof,  or 
that  it  impairs  the  national  obligation  of  its  debt  by  such  cession  or 
relinquishment. 

•'  Into  these  (juestions  the}'  do  not  think  it  neccessar}'  to  enter. 

"As  to  the  rights,  expectations,  or  calculations  of  creditors,  to 
which  the  Spanish  memorandum  adverts,  the  American  Commissioners 
have  oidy  to  say  that  as  regards  the  so-called  Cuban  debt,  as  explained 
in  their  memorandum  of  the  14th  instant,  the  creditors,  from  the 
beginning,  took  the  chances  of  the  investment.  The  very  pledge  of 
the  national  credit,  while  it  demonstrates  on  the  one  hand  the  national 
character  of  the  debt,  on  the  other  hand  proclaims  the  notorious  risk 
that  attended  the  debt  in  its  origin,  and  has  attended  it  ever  since. 

"The  Spanish  memorandum  observes  that  in  the  last  twent}'  years 
the  Antilles  have  been  represented  in  the  Spanish  Cortes  and  declares 
that  their  representatives  have  participated  in  all  legislative  acts  bear- 
ing u})on  colonial  obligations  without  ever  protesting  against  their 
lawfulness  or  binding  force.  The  information  in  the  possession  of 
the  American  Conunissioners  leads  to  a  different  conclusion. 

"'Vhe  American  Commissioners  have  in  their  hands  the  Diario  de  las 
Sr.-i'inins  <h  Corte-s.  for  Thursday,  the  'iOth  of  July,  1886,  when  the 
Cu})an  budget  for  18S6-1887  was  introduced  and  discussed.  By  this 
record  it  appears  that  on  the  day  named  Senor  Fernandez  de  Castro, 
a  Senator  from  Cul)a.  referring  to  the  budgets  of  1880,  1882,  1883, 
lss4.  and  LSs*).  declared  that  he  had  objected  to  all  of  them,  and  that 
no  ('u})an  debt  ought  to  be  created,  since  the  obligations  embraced  in 
it  were  national  and  not  local.  He  entered  into  a  brief  examination 
of  tlie  items  which  constituted  the  debt,  and  created  something  of  a 
sensation  l)y  jjointing  out  that  (juinine  had  been  consumed  in  Cuba, 
during  the  war  of  1.S6S-187S.  at  the  rate  of  |.5,000  a  week. 

"  Anotlier  Cul)an  Senator,  Senor  Morelos.  supported  the  views  of 
Senor  Fernandez  de  Castro. 

"  Senator  Carbonell,  representing  the  University  of  Havana,  in  a 
speech  of  great  power,  continued  the  argument,  saying:  '  Have  the 
people  involved  in  this  matter  ever  been  consulted^  The  country  has 
not  been  heard,  and  now  for  the  first  time  has  become  acquainted  with 
the  fact  that  it  has  to  pay  such  debts.' 

"The  Cuban  and  Porto  Kican  Senators.  Senores  Portuondo,  Ortiz, 
Lal)ia,  Montoro.  Fernandez  de  Castro.  Figuems,  and  Vizcarrondo, 
went  further,  and  introduced  a  })ill  to  provide  for  the  payment  by 
Spain  of  the  so-called  Cuban  del»t  in  proportion  to  the  productive 
capacity  of  the  various  provinces. 

"The  protests  of  the  colonial  Senators  were  not  heeded,  but  their 


§  97.]  THE    CUBAN    DEBT.  369 

justice  was  recognized  by  no  less  a  Spanish  statesman  than  Senor 
Sagasta,  the  present  Premier  of  Spain,  then  in  the  opposition,  who 
said: 

"'Our  treasury  is  not  now  sufficiently  provided  with  funds  to  aid 
Cuba  in  the  way  and  to  the  extent  that  we  Avould  like  to  do;  l)ut  I  say 
the  Peninsula  must  give  all  that  it  can,  and  we  must  do  without  hesita- 
tion all  that  we  can.' 

"  Was  not  this  a  clear  acknowledgment  of  the  national  character  of 
the  debt? 

"Perhaps  not  so  clear  as  that  made  in  the  decree  of  autonomy  for 
Cuba  and  Porto  Rico,  signed  by  the  Queen  Regent  of  Spain  on  the 
25th  of  November,  1897,  and  countersigned  by  Senor  Sagasta,  as 
President  of  the  Council  of  Ministers.  In  Article  II.  of  the  'Tran- 
sient Articles'  of  the  decree,  we  tind  the  following  declaration: 

"  '  Article  II.  The  manner  of  meeting  the  expenditures  occasioned 
by  the  debt  which  now  burdens  the  Cuban  and  Spanish  treasury,  and 
that  which  shall  have  been  contracted  until  the  termination  of  the  war, 
shall  form  the  subject  of  a  law  wherein  shall  be  determined  the  part 
pa^'able  by  each  of  the  treasurieis  and  the  special  means  of  paying  the 
interest  thereon,  and  of  the  amortization  thereof,  and,  if  necessar}",  of 
paying  the  principal. 

"'Until  the  Cortes  of  the  Kingdom  shall  decide  this  point,  there 
shall  be  no  change  in  the  conditions  on  which  the  aforesaid  debts  have 
been  contracted,  or  in  the  payment  of  the  interest  and  amortization, 
or  in  the  guarantee  of  said  debts,  or  in  the  manner  in  which  the  pay- 
ments are  now  made. 

"'When  the  apportionment  shall  have  been  made  In^  the  Cortes  it 
shall  be  for  each  one  of  the  treasuries  to  make  payment  of  the  part 
assigned  to  it. 

'"Engagements  contracted  with  creditors  under  the  pledge  of  the 
"good  faith  of  the  Spanish  nation  shall  in  all  cases  be  scrupulously 
respected.' 

"In  these  declarations  we  find  a  clear  assertion  not  only  of  the 
power  of  the  Government  of  Spain  to  deal  with  the  so-called  Cuban 
debt  as  a  national  debt,  but  also  a  clear  admission  that  the  pledge  of 
the  revenues  of  Cuba  was  wholly  within  the  control  of  that  Govern- 
ment, and  could  be  modified  or  withdrawn  by  it  at  will  without  affect- 
ing the  obligation  of  the  debt. 

"As  to  what  is  stated  in  the  Spanish  memorandum  touching  the  aid 
given  to  Cuba  in  the  last  century  or  the  early  part  of  the  present  cen- 
tury by  the  Vice  Royalty  of  Mexico,  the  American  Conunissioners 
might  offer  certain  pertinent  historical  observations;  but  they  deem 
it  necessary  now  to  say  only  that  Mexico  is  not  making  any  claim 
before  this  Joint  Commission,  either  directly  or  indirecth\  As  to 
the  statement  that  Cuba  has  produced  during  a  very  few  years  in  the 

H.  Doc.  5.51 24 


870  sovereignty:  its  acquisition  and  loss.  [§^7. 

})ros(>nt  contuiv  a  sur|)liis  which  wjis  turned  over  to  the  treasury  of 
the  Peuinsuhi.  the  American  Connnis.sioner.s  will  cite  the  justl}'  cele- 
brated DiccloiKirio  Geoff rdJico-K'ittuI l><t (e<>- ] fi><t6i'lco  de  la  hJa  de 
Ciilxi^  ])\  Senor  Don  Jacobo  de  la  Pezuela.  by  which  (see  article  on 
Senior  Don  CMaudio  Martinez  de  Pinillos)  it  appears  that  after  1825 
not  only  were  all  the  expenses  of  the  island  paid  out  of  its  revenues, 
but  surpluses  were  sent,  annually  and  rejrularly,  to  the  mother  country. 
These  surpluses  from  18:)0  to  18»»0  amounted  to  $3-1:, -416, 836.  And  it 
is  to  be  observed  that  in  addition  to  the  regular  annual  surpluses 
turned  over  after  1825,  extraordinary  subsidies  were  from  time  to 
time  granted  to  the  home  Government.  It  was  for  services  rendered 
in  matters  such  as  these  that  Senor  Pinillos  received  the  title  of  Count 
of  Villanueva. 

•*As  to  the  recent  "advances'  to  Cuba,  referred  to  in  the  Spanish 
memoiandum.  it  is  to  be  regretted  that  details  were  not  given.  But, 
by  the  very  term  '  advances.'  it  is  evident  that  the  S})anish  memoran- 
dum does  not  refer  to  gifts,  but  to  expenditures  for  the  reimburse- 
ment of  which  Cuba  was  expected  ultimately  to  provide;  and  the 
American  Connnissioners  do  not  doubt  that  these  expenditures  were 
made  for  the  carrying  on  of  the  war,  or  the  payment  of  war  expenses 
in  CuV)a. 

'•  When  the  American  Commissioners,  in  their  memorandum  of  the 
14th  instant,  referred  to  the  Cuban  insurrection  of  1808  as  the  product 
of  just  grievances,  it  was  not  their  intention  to  offend  the  .sensibilities 
of  the  Spanish  Commissioners,  but  to  state  a  fact  which  they  supposed 
to  l)e  generally  admitted.  They  might,  if  they  saw  tit  to  do  so,  cite 
the  authority  of  many  eminent  Spanish  statesmen  in  support  of  their 
remark.  They  will  content  themselves  with  mentioning  only  one. 
On  February  11,  1S6S>,  Marshal  Serrano,  President  of  the  Provisional 
(Joveriunent  at  Madrid,  in  his  speech  at  the  opening  of  the  Constitu- 
ent Cortes,  referred  to  the  revolution  in  Spain  and  the  insurrection  in 
Cuba  in  the  following  terms:  "The  revolution  is  not  responsible  for 
this  rising,  which  is  due  to  the  errors  of  past  (xovernments;  and  we 
hope  that  it  Avill  be  speedily  put  down  and  that  traniiuillity,  based 
upon  lil)eral  reforms,  will  then  be  durable.'  (Aniuial  Register,  1869, 
p.  255.) 

"The  American  Commissioners  have  read  without  offense  the  refer- 
ence in  the  Sjianish  memorandum  to  the  Indian  rebellions  which  it  has 
been  necessary  for  the  United  States  to  suppress,  for  they  are  unable 
to  see  any  i)arallel  between  the  uprisings  of  those  barbarous  and  often 
savage  tribes,  which  have;  disa})peiired  ))efore  the  march  of  civilization 
because  they  were  unable  to  submit  to  it,  and  the  insurrections  against 
Spanish  ride  in  Cul)a,  insurrections  in  which  many  of  the  noblest  men 
of  Spanish  ])l()od  in  the  island  hav(»  participated. 

■'  Nor  are  the  American  Commissioners  offended  by  the  reference  of 


§  97.]  THE    CUBAN    DEBT.  371 

the  Spanish  niemoranduin  to  the  attempt  of  the  Southern  States  to 
secede.  The  Spanish  Connnissioners  evidently  niiseonceive  the  nature 
and  the  object  of  that  movement.  The  war  of  secession  was  fought 
and  concluded  upon  a  question  of  constitutional  principle,  asserted  l>y 
one  party  to  the  conflict  and  denied  by  the  other.  If  was  a  conflict  in 
no  respect  to  i>e  likened  to  the  uprisinj^s  ag-ainst  Spanish  rule  in 
Cuba. 

'■•  The  American  Commissioners  are  unaware  of  the  ground  on  which 
it  is  asserted  in  the  Spanish  memorandum  that  the  United  States  has 
been  compelled  to  admit  that  the  Cuban  people  are  as  yet  untit  for  the 
enjoyment  of  full  liberty  and  sovereignty.  It  is  true  that  an  intima- 
tion of  such  unfitness  was  made  in  the  note  of  the  Spanish  Govern- 
ment on  the  22nd  of  July  last.  The  Government  of  the  United 
States,  in  its  reply  of  the  3(>th  of  July,  declared  that  it  did  not  share 
the  apprehensions  of  Spain  in  this  regard,  but  that  it  recognized  that 
in  the  present  distracted  and  prostrate  condition  of  the  island,  brought 
about  by  the  wars  that  had  raged  there,  aid  and  guidance  would  be 
necessary. 

"The  reference  in  the  Spanish  memorandum  to  the  obligations  of 
Porto  Rico  is  not  understood  by  the  American  Commissioners,  who 
had  been  led  to  believe  that  there  was  no  Porto  Kican  debt.  On  June 
30,  1S96,  Seiior  Castellano,  Colonial  Minister  of  Spain,  in  submitting 
to  the  Cortes  the  budget  of  Porto  Pico  for  1SH0-1»T,  the  last  one.  as  it 
is  understood,  ever  framed,  said: 

•'•The  duty  to  report  to  the  National  representation  the  financial 
condition  of  Porto  Rico  is  exceedingly  gratifying.  It  shows  the  ever 
growing  prosperity  of  the  Lesser  Antille.  which,  through  the  nndti- 
plicity  of  its  production  and  the  activity  of  its  industry,  has  succeeded 
in  securing  markets  for  its  surj)luses  in  the  Avhole  world. 

•*■  It  being  without  any pvMu:  (hht  {sin  dcudn pdldiai).  all  its  neces- 
sities being  covered,  its  treasury  being  full  to  repletion,  its  public 
services  being  fulfilled  with  regularity,  with  economy  in  the  expenses, 
and  w^th  a  constant  develo})ment  of  the  revenues  of  the  state,  the 
spectacle  afi'orded  }>v  Porto  Rico  is  worthy  of  attention.' 

"The  Gaceta  dc  Madrid  of  July  1,  1896,  which  published  this 
i)udget,  published  also  a  Law,  approved  June  29,  1S96,  providing  for 
the  disposition  to  be  made  of  the  surplus  of  1^1. 750,909  in  the  treasury 
of  Porto  Rico  at  the  expiration  of  the  fiscal  vear  1895-96. 

*•  No  Porto  Rican  Loan  was  ever  conti^acted  or  floated  before  1S96. 

"No  Porto  Rican  bonds  are  quoted  in  the  markets  of  I^urope  or 
America. 

"It  is  possible  that  the  Governor  (General  of  Porto  Rico  may  have 
borrowed  money  from  a  bank  or  from  private  })ersoiis  in  order  to  meet 
in  advance  expenses  authorized  by  the  budget,  and  that  he  may  have 
given  promissory  notes  for  the  anjount  borrowed,  but  these  notes,  paid 


372  sovereignty:  its  acquisition  and  loss.  [§97. 

on  maturity,  do  not  constitute  a  Porto  Rican  debt,  in  the  sense  claimed 
bv  the  Spanish  Commission. 

••  Nor  is  it  to  })e  supposed,  in  view  of  the  flourishing  condition  of 
the  coU>nial  tinances.  as  explained  by  the  Spanish  Minister  of  the 
Colonies,  that  any  note  of  the  kind  referred  to  remains  unpaid. 

•■  The  American  Conunisioners  are  not  acquainted  with  the  works  of 
the  pu))licists  who  maintain  that  the  thirteen  original  United  States 
paid  to  Great  Britain  15, Otto, 000  pounds  sterling,  presumably  for  the 
extinguishment  of  colonial  debts.  The  American  Commissioners,  how- 
ever, feel  no  interest  in  the  matter,  since  the  statement  is  entirely 
erroneous.  The  preliminar}^  and  definite  treaties  of  peace  between 
the  United  States  and  Great  Britain  of  1782  and  1783  were  published 
soon  after  their  conclusion,  and  have  since  been  republished  in  many 
forms.  They  are  the  only  treaties  made  between  the  two  countries  as 
to  American  independence,  and  they  contain  no  stipulation  of  the  kind 
referred  to. 

"Nor  do  the  .Vmerican  Commissioners  perceive  the  relevanc}^  of  the 
citation  in  the  Spanish  memorandum  of  the  sums  paid  by  the  United 
States  to  France,  Spain,  Russia,  and  various  Indian  nations  for  terri- 
tory acquired  from  them.  In  none  of  these  cases  does  it  appear  that 
the  United  States  assumed  any  debts.  The  money  paid  by  the  United 
States  was  paid  for  the  territory. 

'"As  to  the  case  of  Texas,  the  American  Commissioners  have  onl}^  to 
observe  that  Texas  was  an  independent  state  which  yielded  up  its 
independence  to  the  United  States  and  became  a  part  of  the  American 
Republic.  In  view  of  this  extinction  of  the  national  sovereignty  the 
United  States  discharged  the  Texan  debt.  Indeed,  the  whole  reference 
made  in  the  Spanish  memorandum  to  the  case  of  Texas  is  quite  inaccu- 
rate. T\w  United  States  did  not  demand  of  ]\Iexico  the  independence 
of  Texas.  That  independence  was  established  by  the  inhabitants  of 
Texas  themselves,  and  had  long  been  acknowledged,  ])oth  by  the 
United  States  and  by  other  powers,  before  the  voluntary  annexation 
of  Texas  to  the  United  States. 

'•  The  payments  of  mone}'  made  by  the  United  States  to  Mexico  for 
territory  obtained  by  the  former  from  the  latter  at  the  close  of  the 
Mexican  war  are  referred  to  in  the  Spanish  memorandum,  but  these 
payments  estal)lished  no  principle.  They  were  made  ])y  the  United 
States  as  a  part  of  the  general  settlement  with  Mexico,  and  it  will 
hardly  be  argued  that  if  the  treaty  of  peace  had  contained  no  stipula- 
tion on  the  subject,  anything  would  have  Ixhmi  due  from  the  United 
State's. 

"The  Spanish  memorandum,  however,  refers  to  these  transactions 
as  if  they  constituted  precedents  for  the  proposal  put  forward  by  the 
Spanish  Connnissioners  for  the  arbitration  by  the  United  States  and 
Spain  of  the  (question  whether  the  whole  or  any  part  of  the  alleged 


§  97.]  THE    CUBAN    DEBT.  373 

Cuban  and  Porto  Rican  debts  should  bo  assumed  or  guaranteed  1>3'  the 
United  States.  The  American  Commissioners  are  compelled  to  take  a 
different  view  of  the  subject.  The}"  have  no  doul)t  that  if  during  the 
negotiations  with  Mexico  a  proposal  had  ]>een  put  forward  by  either 
part}'  for  the  arl)itration  of  the  question  whether  Mexico  should  cede 
the  territories  demanded  b}-  the  United  States,  or  whether  if  they  were 
ceded  the  United  States  should  pay  for  them,  and  if  so  how  nmch. 
such  proposal  would  have  been  rejected  by  the  other  party  as  entirely 
inapplical)le  to  the  transaction. 

"So  it  is  in  the  present  case.  The  Commissioners  of  the  United 
States  and  of  Spain  have  met  for  the  purpose  of  concluding  a  treat}' 
which  is  to  terminate  a  war.  The  matters  involved  in  this  transaction 
are  matters  for  mutual  adjustment  and  definitive  settlement.  They 
are  matters  to  ))e  determined  by  the  parties  themselves,  and  not  by 
any  third  party.  Arbitration  comes  before  war,  to  aveit  its  evils — not 
after  war  to  escape  its  results. 

"As  was  shown  l)y  the  American  (Jommissioners  in  their  memoran- 
dum of  the  14th  of  Octol)er,  the  burdens  imposed  by  Spain  upon  Cuba 
in  the  form  of  the  so-called  Cuban  debt  have  been  the  fruitful  source 
of  Cuban  insurrections.  In  the  opinion  of  the  American  Commis- 
sioners the  time  has  come  for  the  lifting  of  this  burden,  and  not  for 
the  submission  to  a  third  party  of  the  (question  whether  it  shall  be 
lifted  at  all. 

""Having  answered  so  much  of  the  Spanish  memorandum  as  relates 
to  the  vital  articles  of  the  Spanish  proposals,  and  expounds  the  Spanish 
views  regarding  them,  the  American  Commissioners  do  not  think  it 
necessary  to  discuss  the  remaining  articles,  which  may  be,  for  the 
purpose  of  this  discussion,  regarded  as  merely  subsidiary,  and  as  to 
which  they  make  all  necessary  reservations. 

"Near  the  close  of  their  memorandum,  the  Spanish  Commissioners 
say: 

"'It  appears  by  this  recapitulation  that  the  only  question  now 
pending  between  the  two  Commissions  and  awaiting  their  decision  is  a 
question  of  money,  which,  so  far  as  one  of  the  High  Contracting 
parties  is  concerned,  is  relatively  of  secondary  importance.  That 
question  is  the  one  which  relates  to  the  colonial  debt." 

"In  this  conclusion  the  American  Conuuissioners  concur. 

"  The  American  Connnissionei-s  have  maintained  that  the  proposal  by 
the  Spanish  Commissioners  that  the  United  States  shall  assume  the 
so-called  Cuban  del>t  is  in  reality  a  proposal  to  affix  a  condition  to  the 
unconditional  promise  made  by  Spain  in  the  Protocol  of  August  1:^, 
1898,  to  'relinquish  all  claim  of  sovereignty  over  and  title  to  Cuba;' 
and  they  have  further  maintained  that  the  abstention  of  Spain  from 
proposing  such  a  condition  at  that  time  precludes  her  from  proposing 
it  now.     The  American  Commissioners  have  declared,  and  now  repeat, 


374  sovereignty:  its  acquisition  and  loss.  [§  97. 

that  if  ^iR'li  a  i)ropo.sal  had  l)ee!i  made  durin<(  the  negotiations  that 
resulted  in  the  eonclusion  of  the  Protocol  it  would  have  terminated 
them,  uidess  it  had  been  withdrawn. 

"In  confirmation  of  the  position  that  the  Spanish  Commission  is 
now  precluded  from  proposing  the  assumption  by  the  United  Stjites  of 
the  so-called  Cu))an  debt,  the  American  Commissioners,  besides  invok- 
ing the  unconditional  stipulation  of  the  protocol,  are  able  to  point  to 
the  fact  that  the  Spanish  Ciovernment,  in  the  correspondence  that 
resulte<l  in  the  conclusion  of  that  instrument,  took  the  precaution,  in 
replying  to  the  demand  of  the  United  States  for  the  relinquishment 
by  Spain  of  all  claim  of  sovereignty  over  Cuba,  and  her  immediate 
evacuation  of  the  island,  to  refer  to  the  dut}^  which  in  her  opinion 
rested  upon  the  United  States,  under  the  circumstances,  to  provide  for 
the  protection  of  life  and  property  in  the  island  until  it  should  have 
reached  the  stage  of  self-government.  In  his  note  of  August  7,  1898, 
the  Duke  of  Almodovar.  replying  to  the  demand  of  the  United  States, 
said: 

''  'The  necessity  of  withdrawing  from  the  territory  of  Cuba  being 
imperative,  the  nation  assuming  Spain's  place  must,  as  long  as  this 
territory  shall  not  have  fully  reached  the  condition  required  to  take 
rank  among  other  sovereign  powers,  provide  for  rules  which  will 
insure  order  and  protect  against  all  risks  the  Spanish  residents,  as  well 
as  the  Cuban  natives  still  loyal  to  the  mother  countr}-,' 

''If  to  this  reservation,  which  the  American  Commissioners  have 
declared  their  readiness  to  recognize  in  the  treaty,  the  Spfinish  Gov- 
ernment had  desired  to  add  another  on  the  subject  of  the  Cuban  debt, 
the  opportunity  then  existed  and  should  have  been  seized.  Indeed, 
the  insertion  of  a  few  words  in  the  reservation  actually  made  would 
have  rendered  it  applicable  to  the  so-called  Cuban  debt  as  well  as  to 
the  protection  of  life  and  property. 

"A  labored  argument  is  made  in  the  memorandum  submitted  by  the 
Spanish  Conunissioners  to  prove  that  the  Government  of  the  United 
States  in  declining  to  take  upon  itself  the  so-called  Cu))an  debt  is  act- 
ing in  violation  of  all  principles  of  international  law  and  assumes  an 
attitude  luth(n'to  unknown  in  the  history  of  civilized  nations.  Cases 
supposed  to  be  apposite  ai"e  cited,  showing  the  assumption  of  national 
debts  where  one  sovereignty  is  absorbed  by  another,  or  a  division  of 
national  indel)tedness  where  a  nation  is  deprived  of  an  integral  part 
of  its  domain,  either  l)v  cession,  or  the  attainment  of  independence 
b}'  a  colony  theretofore  charged  with  raising  a  part  of  the  national 
revenue.  P^lsewhere  we  have  pointed  out  the  differences  manifestly 
existing  ))etween  the  cases  cited  and  the  one  in  hand.  The  United 
States  may  well  rest  its  case  upon  this  point  upon  the  plain  terms  of 
the  protocol,  which,  as  the  memorandum  submitted  by  the  Spanish 
Commissioners  well  says,  contains  the  agreement  between  the  parties — 


§  97.]  THE    CUBAN    DEBT.  875 

' for  no  other  was  formulated  between  the  two  parties,'  and  which  is 
executed  when  Spain  relinquishes  all  claim  of  sovereij^nty  over  and 
title  to  Cuba.  If  the  (j[uestion  were  .still  open  the  United  States  might 
well  challenge  the  fullest  inquiry  into  the  eqidty  of  this  demand. 

"It  is  urged  in  the  Spanish  Commissioners' memorandum  that  the 
United  States,  erroneously  believing  in  the  justice  of  the  cause  of 
Cuban  independence,  made  it  its  own,  and  took  up  arms 'in  its  1)ehalf. 
'The  United  States,'  so  declares  the  Spanish  memorandum,  'made  a 
demand  on  Spain,  and  afterwards  declared  war  on  her,  that  Cuba 
might  become  free  and  independent.'  The  causes  of  the  demand  of 
the  United  States  for  the  termination  of  Spanish  sovereignt}'  in  Cuba 
are  amph'  shown  in  the  history  of  the  events  which  preceded  it.  For 
many  3'ears  the  United  States  patiently  endured  a  condition  of  affairs 
in  Cuba  which  gravely  affected  the  interests  of  the  nation.  As  early 
as  1875  President  Grant  called  attention  to  all  its  dread  horrors  and 
the  consequent  injuries  to  the  interests  of  the  United  States  and  other 
nations,  and  also  to  the  fact  that  the  agency  of  others,  either  by 
mediation  or  by  intervention,  seemed  to  be  the  only  alternative  which 
must  sooner  or  later  be  invoked  for  the  termination  of  the  strife. 
During  that  Administration,  notwithstanding  that  it  was  clearly  inti- 
mated to  Spain  that  the  United  States  could  no  longer  endure  the  situ- 
ation— which  had  become  intolerable — no  unf  riendl}'  action  was  taken, 
and  for  ten  years  it  suffered  all  the  inconvenience  and  deprivation, 
destruction  of  trade  and  injury  to  its  citizens  incident  to  the  struggle, 
which  was  ended  })y  the  peace  of  Zanjon,  only  to  break  out  again  and 
to  be  waged  with  every  feature  of  horror  and  desolation  and  profitless 
strife  which  had  characterized  the  former  struggle. 

'•  President  Cleveland,  in  his  annual  message  of  1896,  was  constrained 
to  sa}'  to  the  Congress  of  the  United  States:  'When  the  inabilitv  of 
Spain  to  deal  successful!}^  with  the  insurrection  has  become  manifest, 
and  it  is  demonstrated  that  her  sovereignty  is  extinct  in  Cuba  for  all 
purposes  of  its  rightful  existence,  and  when  a  hopeless  struggle  for 
its  reeshiblishment  has  degenerated  into  a  strife  which  means  nothing 
more  than  the  useless  sacrifice  of  human  life  and  the  utter  destruction 
of  the  very  subject-matter  of  the  conflict,  a  situation  will  be  presented 
in  which  our  obligations  to  the  sovereignty  of  Spain  will  be  superseded 
by  higher  obligations,  which  we  can  hardly  hesitate  to  recognize  and 
discharge.'  Throughout  President  Cleveland's  Administration  this 
situation  was  patiently  endured,  at  great  loss  and  expense  to  the 
United  States,  which  then  and  at  all  times  was  diligent  in  maintaining 
the  highest  obligations  of  neutrality,  through  the  vigilance  of  its  Navy 
and  its  executive  and  judicial  departments. 

"The  present  Chief  Executive  of  the  United  States,  in  his  first  annual 
message,  in  1897,  again  called  attention  to  the  disastrous  effects  upon 
our  interests  of  the  warfare  still  being  waged  in  Cuba.     The  patient 


376  sovereignty:  its  acquisition  and  loss.  t§  ^7. 

waiting  of  the  people  of  the  United  States  for  tlie  termination  of  these 
conditions  c-uhniiuited  in  the  message  of  April  '2.  1SH8.  of  the  President 
to  Congress,  in  which  he  said:  'The  long  trial  has  proved  that  the 
oV)ject  for  which  Spain  has  waged  the  war  can  not  be  attained.  The 
tire  of  insurrection  may  flame  or  may  smolder  with  varying  seasons, 
but  it  has  not  beeii  ami  it  is  plain  that  it  can  not  ])e  extinguished  b}' 
present  methods.  The  only  hope  of  relief  and  repose  from  a  condition 
wliich  can  no  longer  be  endured  is  the  enforced  pacification  of  Cuba. 
In  the  name  of  humanity,  in  the  name  of  civilization,  in  behalf  of 
endangered  American  interests  which  give  us  the  right  and  the  duty 
to  speak  and  to  act.  the  war  in  Cu))a  must  stop.*  Acting  upon  this 
message  the  Congress  of  the  United  States,  in  the  resolution  approved 
by  the  President  Aprd  :i<).  189:S,  which  has  been  so  often  referred  to 
in  the  memorandum  submitted  by  the  Spanish  Commissioners,  based 
its  demand  that  the  Government  of  Spain  relinquish  its  authority  and 
government  in  the  island  of  Cuba,  and  withdraw  its  forces  from  Cuba 
and  Cuban  waters,  upon  conditions  in  Cuba  (so  near  the  United  States) 
which  were  declared  to  be  such  that  they  could  no  longer  be  endured. 

••  It  is  not  necessar\-  to  recite  the  record  of  the  events  which  followed 
that  demand,  well,  known  to  the  members  of  this  Commission,  and 
which  are  now  a  part  of  the  histoi'v  of  the  world.  It  is  true  that  the 
enforced  relinquishment  of  Spanish  sovereignt}'  will  result  in  the 
freedom  and  independence  of  the  island  of  Cuba  and  not  in  the  aggran- 
dizement of  the  Ignited  States.  This  resume  of  events  which  led  to 
the  United  States  taking  up  arms  is  not  made  to  wound  the  suscepti- 
bilities of  the  Spanish  nation,  or  its  distinguished  representatives  upon 
this  Commission,  but.  in  view  of  the  truth  of  history  and  the  state- 
ments made  in  the  memorandum  submitted  by  the  Spanish  Commis- 
sioners, less  could  not  be  said  by  the  representatives  of-the  United 
States.  Not  having  taken  up  arms  for  its  own  advancement,  having 
refrained  from  acquiring  sovereignty  over  Cul)a,  the  United  States 
now  seeks  to  attain  a  peace  consistent  with  its  ends  and  purposes  in 
waging  war.  In  asking,  as  a  victorious  nation,  for  some  measure  of 
reparation,  it  has  not  emulated  the  examples  of  other  nations  and 
demanded  reparation  in  money  for  the  many  millions  spent  and  the 
sufferings.  })rivations  and  losses  endured  ])y  its  people.  Its  relations 
to  Cuba  have  been  those  of  a  people  suffering  without  reward  or  the 
hope  thereof. 

"The  American  Commissioners  therefore  feel  that  they  are  fully 
justiffed  ))oth  in  law  and  in  morals  in  refusing  to  take  upon  themselves 
in  addition  to  the  burdens  already  incurred  the  obligation  of  discharg- 
ing the  so-called  colonial  del)ts  of  Spain — debts,  as  heretofore  shown, 
chiefly  incuired  in  opposing  the  object  for  the  attainment  of  which  the 
resolution  of  intervention  was  adopted  by  the  Congress  and  sanctioned 
bv  the  President  of  the  United  States.     If  it  could  ])e  admitted,  as  is 


i  ^'^0  The    CUBAN    DEBT.  377 

argued  in  the  memorandum  .su>)mitted  })y  the  Si)anish  Commissioners, 
that  the  United  States  in  this  relation  stands  as  the  agent  of  the  Cuban 
people,  the  duty  to  resist  the  assumption  of  these  heavy  (obligations 
would  be  equally  imperative.  The  decrees  of  the  Spanish  Government 
itself  show  that  these  debts  were  incurred  in  the  fruitless  endeavors  of 
that  Government  to  suppress  the  aspirations  of  the  Cuban  people  for 
greater  liberty  and  freer  government.'' 

Memorandum  of  American  Peace  Commission,  Paris,  Oct.  27,  1S98,  S.  T>(H\(i2, 
55  Cong.  'A  sess.,  part  2,  pp.  100-107. 

"The  American  Commi.ssion  affirms  that  Spain  con- 
tracted (it  does  not  sav  that  it  used  the  debt  previouslv 
gament.  \  ..  i  j 

contracted)  the  greatest  part  of  the  Cuban  debt  'in  an 
eff(/t't^  ji)')<t  to  conquer  the  Cahan  tnf^u/yentx.  and  tht-n  to  oppose  the 
United  States,''  and  then  discoursing  upon  the  saiue  theme,  it  sa^^s, 
'  that  it  has  not  been  denied  that  a  part  of  these  loans  was  directly 
used  to  wage  war  against  the  United  States."  To  make  such  statements 
it  is  indispensable  to  suppose  that  the  dates  of  the  creation  of  those 
debts  are  not  known.  One  debt  was  contracted  under  the  authority 
of  the  Decree  of  May  10,  1886,  that  is  to  say,  eight  j'ears  after  the 
re-establishment  of  the  peace  in  Cuba,  and  nine  3'ears  before  the  fresh 
disturbances  of  the  same  in  that  island  through  suggestions  and  by 
means  which  now  are  known  to  the  world.  The  second  issue  was 
authorized  hy  Royal  Decree  of  September  27,  1890,  that  is  to  say, 
twelve  years  after  Cuba  had  found  herself  in  a  condition  of  perfect 
peace,  and  at  the  pinnacle  of  her  prosperity,  and  live  years  before  the 
work  of  her  desolation  began,  through  the  new  rebellion  which  more 
or  less  spontaneously  broke  out  then'.  And  the  two  Decrees  explain 
also  what  were  the  reasons  why  the  .said  issues  were  authorized,  and 
what  were  the  expenses  to  be  met  by  them,  the  payment  of  deticiencies 
in  previous  and  subsequent  appropriation  bills  in  the  island  being' 
prominent  among  them.  It  is  well  known  that  these  deticiencies  were 
due  to  the  great  reduction  of  taxes  made  in  Cu])a  ))y  the  mother  countiy. 

"Will  it  ever  be  said  that  Spain,  through  some  supernatural  gift  of 
divination,  foresaw  in  1886  and  1890  that  in  1895  an  insuri-ection  was 
again  to  break  out  in  Cuba,  and  that  in  1898  the  United  States  were  to 
lend  it  their  armed  protection?  Under  no  other  hypothesis  the  cor- 
rectness of  the  phrases  of  the  American  memorandum  relating  to  this 
point  could  ever  be  admitted. 

•'And  so  far  as  the  expenses  incurred  ])y  Spain  owing  to  the  war 
with  the  United  States  are  concerned,  without  dou])t  the  American 
Commission  is  unaware  of  the  fact  that  on  the  2<»th  of  April  of  the 
present  year,  when  the  hostilities  began,  the  Spanish  Government  was 
still  engaged  in  operations  of  credit,  in  the  shape  of  bonds,  with  the 
direct  guarantee  of  the  customhouses  of  the  Peninsula,  to  the  amount 


378  sovereignty:  its  acquisition  and  loss.  [§97. 

of  1,000  miWions  oi  j)eseta.'i^  as  decided  in  1896  and  1897, — and  in  other 
operations  to  the  amount  of  223  millions  of  jjesetas,  as  authorized  on 
the  2nd  of  April,  1898,  with  the  special  ^juarantee  of  the  stamp  and 
tobacco  revenues  in  the  Peninsula,  as  well  as  the  revenues  called  de 
consumo  in  Spain, — and  that,  in  order  to  meet  the  expenses  of  the  war 
with  the  United  States,  a  Royal  Decree  had  been  issued  on  the  31st  of 
May  in  the  present  year,  authorizing  the  creation  of  a  4  per  cent  per- 
petual domestic  debt,  to  the  amount  of  1,000  millions  of  pesetas,  out  of 
which  806,785,000  were  immediately  negotiated.  Upon  acquaintance 
with  these  facts,  it  is  to  be  supposed  that  the  American  Commission 
will  not  be  willing  to  insist  upon  the  statement  so  groundlessly  made 
in  its  memorandum,  as  it  will  then  understand  that  the  expenses  of  the 
war  with  the  United  States  have  nothing  to  do  with  the  Cuban  colonial 
mortgage  debt. 

''The  American  Commission  advocates  once  more  in  its  memoran- 
dum the  strange  theory  that  the  Spanish  colonies  are  not  bound  to  pay 
the  debt  contracted  by  the  mother  country  to  put  down  the  rebellions, 
whether  of  few  or  of  many,  of  their  inhabitants.  But  this  time,  it 
reaches  the  extreme  of  putting  such  a  singular  doctrine  under  the 
shelter  of  coinnvm  sense^  bv  affirming  that  a  doctrine  to  the  contrary 
would  be  a  threat  to  liberty  and  civilization. 

"Ah!  if  the  colonists,  and  the  citizens  of  the  Great  Republic  would 
have  alleged,  in  justification  of  a  rebellion, — or  should  allege  in  the 
future,  in  an  identical  case,  an  emergency  from  which  that  powerful 
nation  is  certainh-  not  exempted, — a  theory  of  that  kind, — would  the 
American  Government  have  ever  accepted  it?  Will  it  ever  accept  it 
in  the  future? — What  is  condemned  not  b}"  common,  but  by  moral 
sense,  is  the  attempt  to  put  all  rebellion  against  legitimate  authority 
under  the  shelter  of  liberty  and  civilization.  Was  Spain,  or  was  she 
not,  the  legitimate  sovereign  of  Cuba  when  the  first  insurrection  broke 
out.  and  during  the  whole  term  of  the  second  ?  Has  anyone  ever  dared 
to  deny,  or  to  doubt  even,  the  sovereignty  of  Spain  over  that  island  at 
the  time  to  which  we  are  now  referring?  Were  not  the  United  States 
themselves,  and  their  Government,  those  who  day  after  day  urged 
Spain  to  put  down  the  rebellion,  without  excluding  the  use  of  arms, 
and  reestablish  as  prompth"  as  possible  the  peace  in  her  colony  ?  And 
if  Spain  complicMl  with  such  demands,  who,  the  United  States  included, 
can  deny  the  legitimate  character  of  the  expenses  which,  by  virtue  of 
that  compliance,  she  necessarily  incurred? 

"A  doctrine  of  this  nature,  which  the  Spanish  Commission,  through 
considerations  of  respect,  observed  thus  far  by  it,  and  which  it  has  the 
duty  to  observe,  does  not  deservedly  characterize  as  it  certainly  would 
be  b}'  all  the  constituted  Powers  of  the  earth,  can  not  be  advocated  in 
the  face  of  men,  except  from  the  standpoint  that  the  authority'  of  Spain 
was  illegitimate,  and  that  her  sovereignty  was  only  an  arbitrary  act  of 


§  97.]  THE    CUBAX    DEBT.  379 

despotism.  And  is  the  crown  of  Spain  chjiracterized  in  this  manner, 
concretely  and  specifically,  for  her  domination  in  Cuba  prior  to  the 
signing  of  the  Washington  Protocol?  Can  this  be  done  above  all  by 
the  very  same  nation  which  urged  8[)ain  to  exercise  her  sovereicrn 
authority  to  concjuer  those  who  had  risen  in  ai-ms  against  her  in  the 
island  ? 

"Let  us  pass  to  another  subject,  as  the  present  is  too  delicate  to  be 
treated  with  calm  and  serenity  in  a  diplomatic  discussion  wherein  an}' 
attempt  is  made  to  controxert  it. 

"In  the  memorandum  which  we  are  now  answering,  the  singular 
affirmation  is  made  that  the  mortgage  created  l)y  the  two  issues  above 
named  can  l)e  called  more  properly  a  subsidiary  guarantee,  and  that 
the  party  principally  bound  to  pay  is  the  Spanish  nation.  Undoubt- 
edly the  American  Commission  in  making  this  affirmation  had  not 
before  its  eyes  Article  II.  of  the  Royal  Decree  of  May  10.  1886,  author- 
izing the  issue  of  l,iil:0,000  hypothecary  bonds  of  the  Island  of  Cuba, 
or  the  2nd  paragraph  of  Article  II.  of  the  Royal  Decree  of  September 
27,  1890,  authorizing  the  issue  of  1,750,000  hypothecary  bonds  of  the 
same  island.  Both  texts  read  literally  the  same,  and  it  will  ])e  suffi- 
cient for  us  to  transcribe  one  of  them.  Their  language  is  as  follows: 
'The  new  bonds  shall  have  the  direct  (especial)  guarantee  of  the  cus- 
toms revenue,  stamp  revenue  of  the  Island  of  Cuba,  direct  and  indi- 
rect taxes  now  levied  or  to  be  levied  there  in  the  future,  and  the  sub- 
sidiary (general)  guarantee  of  the  Spanish  nation.  They  shall  be 
exempt  from  all  ordinary  and  extraordinary  taxes,  etc' 

"Nor  ciui  the  American  Commission  have  seen  any  of  the  bonds 
issued  under  these  authorizations,  which  are  scattered  everywhere  in 
the  world,  Cuba  included,  and  are  owned  by  third  parties  and  private 
individuals;  had  it  seen  them  it  might  have  read  the  following:  "  Direct 
(especial)  guarantee  of  the  customs  reviMiuc,  stamp  revenue  of  the 
island  of  Cuba,  direct  or  indirect  taxes  therein  levied  or  to  be  levied 
hereafter,  and  the  subsidiary  (general)  guarantee  of  the  Spanish 
nation.'  'The  Spanish  Colonial  Bank  shall  receive,  in  the  island  of 
Cuba,  through  its  agents  there,  or  in  liarcelona,  through  the  Spanish 
Bank  of  Havana,  the  receipts  of  the  custom-houses  of  Cuba,  and  such 
amount  thereof  as  may  be  necessary,  according  to  the  statcMuents  fur- 
nished on  the  back  of  the  bonds,  to  meet  the  quarteily  payment  of 
interest  and  principal,  shall  be  retained  dailv  and  in  ad^•ance.' 

"If  after  this,  the  American  Commission  contimies  to  understand 
that  this  debt  was  not  contracted  as  a  debt  secured  by  moi'tgage,  and 
that  this  mortgage  was  not  placed  upon  the  customs  revenues  and 
other  taxes  of  Cuba;  and  further,  that  these  revenues  were  not 
pledged  principally  and  primarily,  and  therefore  prior  to  the  Penin- 
sular treasury,  to  the  payment  of  interest  and  principal,  we  shall 
have  nothing  to  say.     We  are  unable  to  prove  what  is  self-evident. 


880  sovereignty:  its  acquisition  and  loss.  [§97. 

'■"Turning  now  to  the  ))ondholders  and  to  the  .severity,  in  our 
opinion  unjustified,  with  which  they  are  treated  in  the  American 
memorandum,  we  shall  say  that  the  duty  to  defend  them  does  not 
belong'  to  Spain,  When  they  know  what  is  the  opinion  entertained 
about  them,  it  is  to  be  supposed  that  they  will  defend  themselves,  for 
after  all  they  will  not  need  any  great  effort  to  demonstrate  the  justice 
of  their  cause. 

"  So  far  as  Spain  is  concerned,  and  here  the  Spanish  Commission 
proceeds  to  answer  categorically  the  questions  propounded  in  the 
American  memorandum,  it  is  sufficient  for  her  to  defend  the  legitimacy 
of  her  action  and  her  perfect  right  to  create  that  debt  and  the  mort- 
gage with  which  it  was  secured,  and  therefore  the  strict  right  vested 
in  her  not  to  pay  either  interest  or  principal,  except  upon  proof  of  the 
insufficiency  of  the  mortgaged  revenues,  out  of  which  they  should  be 
primarih'  paid.  If  those  who  hold  those  revenues  are  not  willing  to 
comply  with  the  obligations  to  the  fulfillment  of  which  said  revenues 
were  pledged,  the  responsibility  therefor  will  belong  to  them,  and  not 
to  Spain,  who  has  neither  the  means  to  compel  them  to  comply  with 
that  duty,  nor  is  bound  to  do  for  the  bondholders  anything  else  than 
what  she  has  honestly  done  up  to  now.  But  Spain,  the  Spanish  Com- 
mission says  again  (and  this  is  the  only  thing  she  has  textually  said, 
although  the  American  memorandum  seems  to  understand  it  differ- 
enth'),  can  not  lend  itself  in  this  treaty  with  the  United  States,  nor  in 
any  other  treaty  with  an}"  other  power,  to  do  or  to  declare  in  her  name 
anything  which  may  mean,  or  imply,  that  she  herself  has  doubts,  and 
much  less  ignores  or  voluntarily  abridges,  so  far  as  she  is  concerned, 
the  mortgage  rights  of  the  bondholders.  She  has  no  efficient  means  to 
cause  those  who  may  become  holders  of  the  mortgaged  re\'enues  to 
respect  those  rights.  Therefore  she  does  not  employ  them;  did  she 
have  them,  she  would  employ  them,  if  not  through  strict  justice,  at 
least  through  a  moral  dutv,  thus  following  the  dictates  of  probity,  both 
public  and  private." 

Meinoraiiduin  of  Spanish  Peace  Commission,  Paris,  Nov.  16,  1898,  S.  Doc.  62, 
55  Cong.  3  sess.,  part  2,  pp.  176-179. 

"Another  object  of  especial  care  and  attention  to  the  Government  of  Your 
Majesty  has  been  that  which  refers  l)oth  to  the  right  of  many  natives  of 
our  former  c-olonies  to  continue  to  enjoy  the  fixed  annual  payments  which 
they  receive  from  the  treasury  in  the  nature  of  pensions,  as  well  as  to  the 
right  of  others  to  demand,  on  account  of  eminent  services  rendered  to  the 
country  in  i)er.«on  or  by  those  from  whom  their  rights  are  derived,  pen- 
sions to  reward  therefor.  It  is  furthermore  but  right  that  those  who 
recover  their  citizenship  should  be  restored  to  the  enjoyment  of  the  pen- 
sions to  which  they  are  legally  entitled,  making  the  payment  of  these, 
nevertheless,  depend,  as  only  seems  just,  upon  residence  within  Spanish 
territory  and  the  j)revious  exannnation  of  their  re.spective  claims;  and  it 
must  be  understood  that  the  restoration  of  their  pensions  will  commence 
only  from  the  time  at  which  application  therefor  is  made. 


§  97.]  THE    CUBAN    DEBT.  381 

"Lastly,  natives  of  the  aforesaid  territories  who  can  not  leave  them  and  who 
may  have  rendered,  as  has  been  said  before,  distinguishe<l  services  to  the 
country,  shall  be  entitled  to  obtain  pensions  as  a  reward,  for  the  Spanish 
nation  can  not  neglect  to  protect  those  who  have  nobly  defended  its 
interests;  but  the  oV>taining  of  said  pensions  must,  in  every  case,  lye  sul)- 
ject  to  the  special  proceedings  pra^^cribed  by  the  law  of  the  12th  of  May, 
1837,  as  the  unusual  character  of  this  class  of  pensions  calls  for."  (Report 
of  Premier  Sagasta,  May  11,  1901,  accompanying  the  royal  decree  of  the 
same  date,  in  which  his  recommendations  were  embodied,  For.  Rel.  1901, 
475. ) 

For  the  text  of  the  decree,  see  Nationality  and  the  effect  of  a  change  of  sov- 
ereignty thereon. 

"  In  citing-  the  Royal  Decrees  of  1886  and  1890,  and  the  contents  of 

the  bonds  issued  thereunder,  as  something  with  which 
Extract  from  Amer-  ^i         »  .  y ,  .     .  .         , 

...     ^         the  American   Commissioners  were   previously  unac- 
ican  ultimatum.  ,  ^         ,  ,     _  i 

quainted.  the  Spanish  Commissioners  seem  to  have 
overlooked  or  forgotten  the  paper  which  the  American  Commissioners 
presented  on  the  1-lth  of  October.  In  that  paper  the  American  Com- 
missioners express!}'  mentioned  and  described  the  financial  measures  of 
1886  and  1890  and  the  stipulations  of  the  bonds  thereby  authorized. 
But  they  did  more  than  this.  Bein^  concerned  with  the  substance  rather 
than  with  the  form  of  the  matter,  they  reviewed  with  some  minute- 
ness the  hi.stor}'  of  the  debt  and  the  circum.stances  of  its  creation. 
The}'  showed  that  it  was  in  realit}'  contracted  by  the  Spanish  Govern- 
ment "for  national  purposes;  that  its  foundations  were  laid  more  than 
twenty  vears  before  the  Royal  Decree  of  1886,  and  at  a  time  when  the 
revenues  of  the  island  were  actually  producing  a  surplus,  in  national 
enterprises  in  Mexico  and  San  Domingo,  foreign  to  the  interests  of 
Cuba;  and  that  it  was  soon  afterwards  swollen  to  enormous  dimensions 
as  the  result  of  the  imposition  upon  Cuba,  as  a  kind  of  penalty,  of  the 
national  expenses  incurred  in  the  efforts  to  suppress  by  force  of  arms 
the  ten  years"  war  for  the  independence  of  the  island.  At  this  point 
the  American  Commissioners  in  their  paper  of  the  11th  of  October 
referred  to  the  financial  operation  of  1886,  but  they  properly  referred 
to  it  in  its  true  character  of  a  national  act  for  the  consolidation  or 
funding  of  debts  previously  incurred  by  the  Spanish  Government,  and 
expressly  quoted  the  national  guaranty  that  appears  on  the  face  of  the 
bonds.  At  the  risk  of  a  repetition  which  should  be  unnecessary,  the 
American  Coiimii.ssioners  will  quote  from  their  paper  of  the  lith  of 
October  the  following  paragraph: 

"  •  Sul)sequenth'  the  Spanish  Government  undertook  to  consolidate 
the.se  debts  (i.  e.,  the  debts  incurred  in  Mexico,  San  Domingo,  and  the 
ten  years'  war)  and  to  this  end  created  in  1886  the  so-called  BiUetea 
hlpottcarlo.s  (h^  hi  Ma  de  Cuha,  to  the  amount  of  6:20,000,000  pesetas, 
or  !^121:.otKi,<»oO.  The  Spanish  Government  undertook  to  pay  these 
bonds  and  the  interest  thereon  out  of  the  revenues  of  Cuba,  but  the 


382  soveeeignty:  its  acquisition  and  loss.  [§97. 

national  charactor  of  tho  cle})t  was  shown  bv  the  fact  that,  upon  the 
face  of  the  bonds  '  the  Spanish  nation  "  {la  JVaclihi  ICspanola)  guaran- 
teed their  payment.  The  annual  charge  for  interest  and  sinking  fund 
on  account  of  this  de])t  amounted  to  the  sum  of  39,1^1,000  pesetas,  or 
^7,838,200,  which  was  disbursed  through  a  Spanish  financial  institu- 
tion, called  the  Banco  Hlspano-  Colonial,  which  is  said  to  have  collected 
daily  from  the  custom  house  at  Havana,  through  an  agency  there 
established,  the  sum  of  $33,339.' 

"The  American  Commissioners  then  referred  in  the  same  paper  to 
the  authorization  by  the  Spanish  Government  in  1890  of  a  new  issue 
of  bonds,  apparently  with  a  view  to  refund  the  jjrior  debt  as  well  as 
to  cover  any  new  debts  contracted  between  1886  and  1890,  and  stated 
that,  after  the  renewal  of  the  struggle  for  independence  in  February 
1895,  this  issue  was  diverted  from  its  original  purpose  to  that  of  rais- 
ing funds  for  the  suppression  of  the  insurrection. 

"The  American  Commissioners  are  at  a  loss  to  perceive  how,  in 
reciting  these  transactions,  in  which  past  and  not  future  obligations 
were  dealt  with,  they  could  have  been  understood  to  intimate  that 
Spain,  through  what  is  described  in  the  Spanish  memorandum  as  a 
'supernatural  gift  of  divination,'  foresaw  the  insurrection  of  1895  and 
the  ultimate  intervention  of  the  United  States.  The  American  Com- 
missioners will  not  indulge  in  the  read}'  retort  which  this  fanciful 
efi'ort  at  sarcasm  invites.  Whether  the  consequences  of  imposing 
upon  Cuba  burdens  not  to  be  borne  were  or  were  not  foreseen  by 
Spain  is  a  question  upon  which  it  would  be  idle  now  to  speculate. 

"As  to  the  special  "Cuban  War  Emergency  Loan,'  composed  of 
'five  per  cent  peseta  bonds,'  which  were  referred  to  as  part  of  what 
was  considered  in  Spain  as  j)roperly  constituting  the  Cuban  debt,  the 
American  Commissioners  expressly  declared  that  it  did  not  appear 
that  in  these  bonds  the  revenues  of  Cuba  were  mentioned. 

"The  American  Commissioners,  in  reviewing  in  their  paper  of  the 
llrth  of  October  the  history  of  the  so-called  Cuban  debt,  necessarily 
invited  the  fullest  examination  of  their  statements.  They  have  vet  to 
learn  that  those  statements  contained  anv  error. 

""They  freely  admit,  however,  that  they  had  never  seen  it  asserted 
till  the}'  read  the  assertion  in  the  Spanish  memorandum,  that  the 
deficiencies  in  the  Cuban  appropriation  bills  or  budgets  which  the' 
debts  are  said  to  represent  were  '  due  to  the  great  reductions  of  taxes 
made  in  Cuba  by  the  mother  country.'  If,  as  they  are  now  assured, 
this  is  a  fact  '  well  known.'  they  are  conqjellcd  to  admit  that  they  were, 
and  that  they  still  remain,  ignorant  of  it.  Indeed,  the  American  Com- 
missioners wei-e  not  aware  that  Cuban  appropriation  bills  or  budgets 
existed  prior  to  ISSO,  in  May  of  which  year  the  first  measure  of  the 
kind  was  submitted  to  the  Spanisli  Cortes.  During  the  discussion  of 
that  budget,  a  distinguished  Senator,  not  a  Cuban,  who  had  been  Min- 


§  97.]  THE    CUBAN    DEBT.  383 

ister  of  State  in  the  Spanish  cabinet,  Senor  Don  Servando  Ruiz  Gomez, 
presented  to  the  Senate  an  official  statement  of  the  Colonial  Department, 
showing  that  the  alleged  debts  of  Cuba  amounted  to  $126,8.34,-119.25 
in  gold  and  l$4.5, 300,076  in  paper,  or,  in  round  numbers,  $140,000,000 
in  gold. 

''It  is  true  that  after  1880.  and  especially  after  1886.  deficiencies 
appeared  in  the  ])udgets,  but  a  correct  conception  of  their  cause  may 
be  derived  from  the  budget  of  1886-1887,  when  the  prior  debts  were 
consolidated.  The  amount  of  the  burdens  imposed  upon  Cuba  b}'  that 
budget,  eight  years,  as  the  Spanish  memorandum  observes,  "after  the 
reestablishraent  of  peace.'  was  ^25,959,73-1:. 79,  which  was  distributed 
as  follows: 

"General  obligations $10, 853,  836.  79 

"Department  of  Justice 883,  022.  22 

' '  Department  of  War (i,  730,  977.  17 

"Department  of  the  Treasury 903,326.  29 

"Department  of  the  Navy 1,  -134,  211.  40 

"Department  of  the  Interior 3,  935,  6.58.  92 

"Department  of  Fomento 1,  238,  702. 00 

25, 959,  734.  79 

'*0f  the  sum  total  of  this  burden,  it  is  seen  that  the  three  items  of 
General  Obligations,  War,  and  Navy,  constitute  nearly  three-fourths. 
And  what  were  the  "General  Obligations T  The  principal  item — 
nine-tenths  of  the  whole — was  that  of  ^9,617,423.02,  for  interest,  sink- 
ing fund,  and  incidental  expenses  on  the  so-called  Cuban  debt.  The 
rest  went  chiefly  for  pensions  to  Spanish  officials. 

"The  budget  for  1896-1897  amounted  to  $28,583,132.23. 

"These  figures,  which  speak  for  themselves,  seem  to  render  peculiarly 
infelicitous  the  novel  suggestion  that  the  deficiencies  in  the  Cuban 
budgets  have  been  due  to  the  reduction  of  taxes. 

"As  to  that  part  of  the  Si)anish  memorandum  in  which  the  so-called 
Cuban  bonds  are  treated  as  "mortgage  bonds,'  and  the  rights  of  the 
holders  as  'mortgage  rights,'  it  is  necessary  to  say  only  that  the  legal 
difference  between  the  pledge  of  revenues  3'et  to  be  derived  from  tax- 
ation and  a  mortgage  of  property  can  not  be  confused  by  calling  the 
two  things  by  the  same  name.  In  this,  as  in  another  instance,  the 
American  Commissioners  are  able  to  refer  to  previous  statements 
which,  although  the  Spanish  memorandum  betrays  no  recollection  of 
them,  for  obvious  reasons  remain  unchallenged.  The  American  Com- 
missioners have  shown,  in  their  argument  of  the  27th  of  October,  that 
the  Spanish  Government  itself  has  not  considered  its  pledge  of  the 
revenues  of  Cuba  as  in  any  proper  legal  sense  a  mortgage,  hut  as  a 
matter  entirely  within  its  cc^ntrol.  In  proof  of  this  fact  the  American 
Conunissioners  quoted  in  that  argument  certain  provisions  of  the  decree 
of  autonomy  for  Cuba  and  Porto  Rico,  signed  l)y  the  Queen  Regent  of 


384  sovereignty:  its  acquisition  and  loss.  [§97. 

Spain  on  the  25th  of  November  1897,  and  countersigned  by  Senor 
Sagasta,  as  President  of  the  Council  of  Ministers.  By  that  decree  it 
was  declarefl  that  the  manner  of  meeting  the  expenditures  occasioned 
by  the  debt  which  burdened  'the  Cuban  and  Spanish  treasury'  should 
' form  the  subject  of  a  law'  wherein  should  be  'determined  the  part 
payable  by  each  of  the  treasuries,  and  the  special  means  of  paying  the 
interest  thereon,  and  of  the  amortization  thereof,  and,  if  necessary,  of 
paying  the  principal:'  that,  when  the  " apportionment '  should  have 
been  'made  by  the  Cortes,'  each  of  the  treasuries  should  'make  pay- 
ment of  the  part  assigned  to  it,'  and,  Unally,  that  ''engagements  con- 
tracted witli,  creditors  under  the  2>l(idge  of  the  good  faith  of  the  Spanish 
nation  shall  in  all  cases  he  scrupulously  respected,'' 

''In  these  declarations  the  American  Conmiissioners  find,  as  they 
stated  in  the  argument  above  referred  to,  '  a  cleai"  assertion  not  only 
of  the  power  of  the  Government  of  Spain  to  deal  with  the  so-called 
Cuban  debt  as  a  national  debt,  but  also  a  clear  admission  that  the 
pledge  of  the  revenues  of  Cuba  was  wholly  within  the  control  of  that 
Government,  and  could  be  modified  or  withdrawn  by  it  at  will  without 
affecting  the  obligation  of  the  debt,'  and  so  long  as  the  stipulated  pay- 
ments upon  the  debt  were  made,  without  violating  the  engagements  of 
Spain  with  her  creditors. 

"No  more  in  the  opinion  of  the  Spanish  Government,  therefore, 
than  in  point  of  law,  can  it  be  maintained  that  that  Government's 
promise  to  devote  to  the  payment  of  a  certain  part  of  the  national 
debt  revenues  yet  to  be  raised  by  taxation  in  Cuba,  constituted  in  any 
legal  sense  a  mortgage.  The  so-called  pledge  of  those  revenues  con- 
stituted, in  fact  and  in  law,  a  pledge  of  the  good  faith  and  ability  of 
Spain  to  pay  to  a  certain  class  of  her  creditors  a  certain  part  of  her 
future  revenues.  They  obtained  no  other  security,  beyond  the  guar- 
anty of  the  '  Spanish  Nation,'  which  was  in  reality  the  only  thing  that 
gave  substance  or  value  to  the  pledge,  or  to  which  they  could  resort 
for  its  performance. 

"One  more  remark,  and  the  American  Commissioners  have  done  with 
the  renewed  discussion  ijito  which  they  regret  to  hav^e  been  obliged  to 
enter  on  the  subject  of  the  so-called  Cuban  debt.  The  Spanish  Com- 
missioners are  correct  in  saying  that  the  Government  of  the  United 
States  repeatedly  urged  Spain  to  reestablish  peace  in  Cuba,  and  did 
not  exclude  the  use  of  arms  for  that  purpose;  but  the  impression  con- 
vej'ed  by  this  partial  statement  of  facts  is  altogether  erroneous,  as  is 
also  the  implied  representation  that  Spain's  course  in  the  matter  may 
be  considered  as  a  compliance  with  the  demands  of  the  United  States. 
The  (iovernment  of  the  Ignited  States  did  indeed  repeatedly  demand 
that  order  be  reestal)lished  in  Cuba;  but  through  long  years  of  patient 
waiting  it  also  tried  and  exhausted  all  the  efforts  of  diplomacy  to  induce 
Spain  to  end  the  war  l)y  granting  to  the  island  either  independence  or 


§  98,]  CONTRACTS    AND    CONCP:SSIONS.  385 

a  .substantial  measure  of  self-government.  As  early  as  the  spring  of 
1869,  not  long  after  the  deepening  gloom  of  the  ten  years'  war  began 
to  settle  upon  the  island,  the  United  States  offered  its  mediation  and 
its  credit  for  the  reestablishment  of  peace  between  Spain  and  her 
colony.  Spain  then  as  afterwards  preferred  war  to  the  relinquishment 
of  her  rule,  and  the  United  States  did  not  assume  to  discuss  the  legiti- 
mac}'  of  the  expenses  incurred  in  the  pursuit  of  that  policy.  But  the 
question  of  Spain's  right  to  incur  those  expenses,  and  that  of  her  right 
or  her  power  to  fasten  them  as  a  perpetual  burden  upon  the  revenues 
of  Cuba,  after  those  revenues  have  passed  beyond  her  control,  are 
questions  between  which  the  American  Commissioners  feel  neither 
difficulty  nor  hesitation  in  declaring  and  maintaining  a  fundamental 
difference  both  in  law  and  in  morals." 

Memorandum  of  American  Peace  Commis.«ion,  Paris,  Nf)V.  21,  1898,  S.  Doc.  62. 
55  Cong.  3  sess.,  part  2,  pp.  198-201. 

The  military  governor  of  Cnba,  under  the  American  occupation,  declined  to 
pay  claims  that  arose  prior  to  Jan.  1,  1899,  except  in  that  part  of  Cuba 
surrendered  to  the  United  States  forces  July  17,  1898.  (Mr.  Hay,  Sec.  of 
State,  to  the  Duke  of  Arcos,  Span,  min.,  Aug.  3,  1900,  MS.  Notes  to 
Spain,  II.  512;  Mr.  Hill,  Acting  Sec.  of  State,  to  the  Duke  of  Arcos,  Span, 
min.,  Sept.  20,  1900,  MS.  Notes  to  Spain,  II.  521.) 

7.  Ox  Contracts  and  Concessions. 

>;  98. 

In  a  series  of  European  treaties  relating  to  the  cession  of  territory, 

express  provision  has  been  made  for  the  fuliillment  by 
European  treaties.  ,,  .  ,.  ^.^.^.^^^.l^.u^j 

the  new  sovereign  of  contracts  entered  into  by  the  old. 

By  the  treaty  l)etween  Austria  and  France,  signed  atCampo  Formio 
Oct.  17,  1797,  it  was  provided  (Art.  XII.)  that  "'all  sales  or  convers- 
ances, all  ol)ligations  contracted,  either  by  the  cities  or  by  the  govern- 
ment or  civil  and  executive  authorities  of  the  countries  heretofore 
Venetian  for  the  maintenance  of  the  French  and  German  armies  up  to 
the  date  of  this  treaty,  shall  ))e  confirmed  and  considered  as  valid." 

By  the  treaty  of  Paris  of  May  30,  1814,  it  was  stipulated  (Art. 
XXX.)  that  ""  the  sums  due  for  all  works  of  public  utility  on  the  Rhone 
and  in  the  Departments  separated  from  France  by  virtue  of  this  treaty, 
not  \'et  completed,  or  which  shall  ])e  completed  after  December  31, 
1S1:>,  shall  l)e  charged  to  the  future  owners  of  the  territory  and  be 
licjuidated  by  the  Commission  entrusted  with  the  li(|uidation  of  the 
de))t  of  the  two  countries." 

By  the  treaty  between  Austria,  France,  and  Sardinia,  signed  at  Zurich 
Nov.  10. 1S59,  it  was  declared  (Art.  YIlI.)that  the  Sardinian  Govern- 
ment succeeded  "'to  the  rights  and  obligations  growing  out  of  contracts 
duly  entered  into  bv  the  Austrian  administration  for  the  ends  of  the 
public  interests  especiall}"  concerning  the  ceded  territory."" 

H.  Doc.  551 25 


386  sovereignty:  its  acquisition  and  loss.  [§98. 

France  assumed  a  similar  obligation  in  the  convention  with  Sardinia 
of  18«)0  as  to  '"all  the  rights  and  obligations  growing  out  of  contracts 
entered  into  b^'  Sardinia  for  purposes  of  public  interests  especially 
connected  with  Savoy  and  Nice." 

By  the  treat}'  of  London  of  1864,  between  Great  Britain,  France, 
Russia,  and  Greece,  by  which.  Great  Britain  renouncing  her  protecto- 
rate, the  Ionian  Islands  were  reunited  to  Greece,  the  King  of  Greece 
undei'took  "to  assume  all  the  engagements  and  contracts  legall}'  con- 
cluded" by  the  government  of  the  islands,  or  by  the  protecting  power 
in  its  name,  as  well  as  pensions  and  indemnities  due  to  various  persons. 

The  treaty  between  Austria,  Prussia,  and  Denmark,  concluded  at 
Vienna  Oct.  30,  1864,  contains  the  following  provision: 

''Art.  17.  The  new  government  of  the  Dukedoms  succeeds  to  all  the 
rights  and  obligations  growing  out  of  contracts  duly  entered  into  by 
the  administration  of  H.  M.  the  King  of  Denmark  for  the  purposes 
of  the  public  interests  which  especialh'  concern  the  ceded  countries. 
It  is  understood  that  all  obligations  growing  out  of  contracts  entered 
into  by  the  Danish  Government  relative  to  the  war  and  the  Federal 
action  are  not  included  in  the  foregoing  stipulation.  The  new  govern- 
ment of  the  Dukedoms  shall  respect  all  rights  legally  acquired  by  the 
civil  persons  or  individuals  of  the  Dukedoms.  In  the  event  of  claims, 
the  courts  shall  take  cognizance  of  matters  of  this  kind." 

In  the  treaty  between  Austria  and  Italy,  signed  at  Vienna  Oct.  3, 
1866,  it  is  stipulated: 

''"Art.  8.  The  government  of  H.  ]M.  the  King  of  Itah'  succeeds  to 
the  rights  and  obligations  growing  out  of  contracts  formally  entered 
into  by  the  Austrian  administration  for  purposes  of  public  interest 
especially  relating  to  the  ceded  country. 

"Art.  10.  The  government  of  H.  ^I.  the  King  of  Italy  recognizes 
and  contirms  the  railroad  concessions  made  bv  the  Austrian  Govern- 
ment in  the  ceded  territory  in  all  their  provisions  and  for  their  full 
term,  and  especialh'  concessions  through  contracts  dated  March  12, 
1S56,  April  s,  18.57,  October  25,  1858. 

"From  the  exchange  of  the  ratifications  of  this  treat}'  the  Italian 
Government  assumes  all  the  rights  and  o))ligations  attaching  to  the 
Austrian  Government  through  the  said  contracts  so  far  as  relates  to 
the  railroad  lines  situated  in  the  ceded  territory." 

By  an  additional  article  to  the  treaty  of  peace  ])etween  France  and 
Germany,  concluded  at  Frankfort  May  1(>,  1871,  special  provisions  were 
made  for  the  acquisition  by  Germany  of  the  Railway  of  the  East  in 
Alsace-Lorraine. 

The  additional  treaty  l)etween  the  same  powers,  signed  at  Frankfort 
Dec.  11,  1.S71.  provided: 

"Art.  XIII.  The  German  Government  recognizes  and  confirms  con- 
cessions for  roads,  canals,  and  mines  granted  either  by  the  French 


§  98.]  CONTEACTS    AND    CONCESSIONS.  387 

Government  or  by  the  Departments  or  Municipalities  of  the  ceded 
territory.  The  same  will  apply  to  contracts  made  by  the  French  Gov- 
ernment, Departments  or  Municipalities  relative  to  the  leasing  or 
exploitation  of  the  State,  Departmental  or  Municipal  properties  situated 
in  the  ceded  territory. 

"The  German  Empire  becomes  subrogated  to  all  the  rights  and  bur- 
dens growing  out  of  the  concessions  granted  by  the  French  Government. 

''With  respect  to  slibventions  in  kind  or  in  specie,  all  credits  due  to 
building  contractors,  lessors,  and  purveyors,  as  well  as  indemnities  for 
appropriations  of  lands  or  other  indemnities  left  unpaid  by  the  French 
Government,  will  be  paid  b}"  the  German  Government. 

''As  regards  pecuniary  or  other  obligations  which  these  conditions 
imposed  on  the  ceded  Departments  and  Municipalities,  the  Government 
of  the  Empire  will  see  to  it  that  they  are  strictly  performed  in  behalf 
of  the  concessionaries,  lessors  or  contractors." 

By  Article  X.  of  the  treaty  of  Berlin  of  July  13,  1878,  Bulgaria 
engaged  to  take  the  place  of  the  Porte  in  respect  of  the  obligations 
connected  with  the  railw^ay  concessions  in  the  principality;  by  Art. 
XXI.  the  rights  and  obligations  of  the  Porte  in  relation  to  railroads  in 
Eastern  Roumelia  were  declared  to  remain  in  full  force  and  effect;  and 
by  Art.  XXX VI.  it  was  stipulated:  "Servia  stands  in  the  stead  of  the 
Sublime  Porte  in  all  contracts  relating  to  railroads." 

By  a  notice  published  in  the  Journal  Officiel  at  Tamatave,  April  3, 
1897,  the  French  resident-general  invited  all  persons 
gascar.  holding  concessions  granted  by  the  Malagasy  Govern- 

ment to  present  him  with  a  copy  ''either  of  their  title 
of  concession  or  their  title  of  acquisition"  within  two  months,  together 
with  ''a  detailed  statement"  of  the  rights,  obligations,  and  advantages 
existing  under  it.  The}"  were  also  to  say  to  what  extent  they  had  dis- 
charged their  obligations,  to  what  extent  the  Malagas}^  Government 
had  executed  its  obligations,  and  to  set  forth  their  precise  claims  as 
against  the  French  Government.  In  case  they  desired  to  continue  an 
"exploitation"  alread}'  entered  upon,  they  were  to  apph'  for  a  pro- 
visional permit  therefor  and  to  submit  themselves  to  the  control  of  the 
French  agents  and  of  the  French  laws.  In  default  of  compliance  with 
this  request  the}"  were  to  be  considered  as  renouncing  their  concessions, 
which  the  Government  would  dispose  of  at  their  risk  and  peril.  It 
was  further  stated  that  the  notice  did  not  imply  any  recognition  of  the 
validity  of  any  concession  or  the  renunciation  of  any  rights  of  the 
French  Government  in  the  premises. 

The  American  ambassador  at  Paris  was  instructed  that  the  L'^nited 
States  "  could  not  regard  such  a  notice  as  valid  or  binding  upon  Ameri- 
can citizens  who  may  have  obtained  concessions  or  acquired  real 
property  in  Madagascar,  inasmuch  as  it  appears  to  be  a  purely  admin- 
istrative procedure,  lacking  the  most  elementary  forms  of  judicial 


388  sovereignty:  its  acquisition  and  loss.  [§  98. 

admini.stration.  It  is  observed,"  continued  the  Department  of  State, 
"'that  in  default  of  the  parties  furnishing  the  information  demanded 
of  them  and  of  their  placing  themselves  '  in  accord  with  the  local  resi- 
dents" (whatever  that  mav  mean)  the  parties  in  interest  are  to  be  con- 
sidered as  renouncing  their  concessions,  and  it  is  added  that  the 
Government  will  dispose  thereof  at  the  risk  and  peril  of  sucH  parties. 
This  announcement  is  of  so  singular  a  character  that  it  behooves  this 
Government  to  in  rite,  through  you.  the  attention  of  the  French  Gov- 
ernment thereto,  and  to  advert  particularly  to  its  failure  to  comply 
with  the  elementary  requirements  of  justice  and  equity  so  far  as  it 
might  affect  the  rights  of  an}-  citizen  of  the  United  States.-' ■' 

The  French  Government  replied  that  the  object  of  the  order,  the 
requirements  of  which  were  of  a  general  character,  was  "to  enable 
the  local  administration  to  complete  the  data  which  it  alreadv  pos- 
sesses as  to  the  manner  in  which  were  passed,  and  then  executed,  the 
contracts  relating  to  the  disposition  of  the  concessions  granted  ])v  the 
old  Government  of  Madagascar,  cither  to  our  citizens  or  to  foreign 
colonists  settled  in  the  large  island  before  our  occupation.  The 
requirements  which  are  in  question  have  therefore  no  other  end  than 
to  establish  the  validity  of  the  said  concessions,  and  would  therefore 
not  affect  property  acquired  in  a  regular  manner.  .  .  .  This 
inquiry,  which  will  ])e  conducted  with  the  greatest  impartiality  to  all 
interested  parties,  whatever  their  nationality,  could  not  be  other  than 
profftaV)le  to  those  who  show  regular  titles  and  who  will  justifv  the 
execution  of  the  clauses  contained  in  their  contract.'"'^ 

The  Department  of  State,  while  considering  this  response  "some- 
what vague."  expressed  appreciation  of  the  desire  of  the  French  Gov- 
ernment to  obtain  complete  data  in  regard  to  concessions  made  to 
foreigners  by  the  Hova  Government,  as  well  as  the  hope  that  Ameri- 
cans holding  concessions  would  promptly  furnish  the  information 
desired.  "But."  said  the  Department  of  State,  •'this  Government 
can  not  admit  the  right  of  the  French  Government,  in  the  event  of  the 
noncompliance  of  any  American  citizen  with  the  order  in  question, 
to  treat  his  concession  as  forfeited  or  subject  to  disposition  b}'  that 
Government.  As  stated  l)y  me  in  m}'  previous  instruction:  'This 
Government  could  not  regard  such  a  notice  as  valid  or  binding  upon 
American  citizcMis  who  may  have  obtained  concessions  or  acquired  real 
property  in  Madagascar.'  In  the  language  of  ]\Ir.  Hanotiiux:  'The 
requirements  which  are  in  (juestion  would  not  affect  property  acquired 
in  a  regular  manner.'     If  your  former  note  to  Mr.  Hanotaux  did  not 

"Mr.  Sherman,  Sec.  of  State,  to  Mr.  Porter,  aiiiba.«sador  to  France,  May  29,  1897, 
For.  Kel.  1897,  154,  155. 

''Mr.  Hanotaux,  min.  of  foreign  affairs,  to  Mr.  Porter,  Am.  ambassador,  July  22, 
1897,  For.  Rel.  1897,  156-157. 


§  ^8.]  CONTKACTS    AND    CONCESSIONS.  389 

make  the  position  of  this  Government  in  this  matter  entirely  phiin, 
you  should  take  occasion  to  do  so  now."'" 

Under  date  of  Decemlier  1.  1898,  the  Spanish  Peace  Commission  at 
l*aris  submitted,  in  connection  with  Spain's  relinquish- 
^TiA  l°plin'°'''  '"^"t  ''^  sovereignty  over  Culm  and  her  cession  to  the 
Tnited  States  of  Porto  Rico,  the  Philippines,  and  other 
island.s.  certain  articles  in  relation  to  '"crrajits  and  contracts  for  pul)lic 
works  and  services."  These  articles  provided  that  all  such  grants  and 
contracts  in  the  islands  in  question  shoukl  be  •'maintained  in  force 
until  their  expiration,  in  accordance  with  the  terms  thereof,  the  new 
government  assuming  uU  the  rights  and  o])ligations  thereby  attaching 
up  to  the  present  time  to  the  Spanish  (xovernment.''  Among  such 
contracts  were  mentioned  that  with  the  Spanish  Compania  Transatlan- 
tica  as  to  the  mails  and  transportation,  that  with  two  English  cable 
companies  iji  Cul)a  and  the  Philppines,  the  railroad  concession  from 
Manila  to  Dagupan.  and  "all  other  concessions  for  railroads  now  in 
operation  or  under  construction  in  Cul)a  or  Porto  Rico."  It  was  added 
that  these  were  "'all  the  contracts  at  present  recalled,  although  it  can 
not  be  stated  that  there  are  not  others  relative  to  public  works  and 
services." 

The  American  Conmiission  declared  that  it  was  "' constrained  to 
reject  these  articles.  The  United  States  did  not  propose,"  added  the 
American  Commission,  "to  repudiate  any  contract  found  upon  inves- 
tigation to  be  binding  under  international  law;  but  no  such  clauses  as 
are  now  proposed  had  been  inserted  in  treaties  heretofore  made  by  the 
United  States  witii  Spain,  France.  ^lexico,  and  Russia  for  the  acquisi- 
tion of  territory,  and  it  might  be  assumed  that  the  United  States  would 
deal  justly  and  eciuitably  in  respect  of  contracts  that  were  binding  under 
the  principles  of  international  law." 

The  Spanish  Commis.sioners,  in  a  memorandum  accompanying  pro- 
tocol No.  21,  of  Dec.  8,  1898,  said: 

••  It  [the  United  States]  refuses,  also,  to  sti})ulate  anything  in  relation 
to  the  respect  due  to  contracts  entered  into  ))y  a  legitimate  sovereign 
for  public  works  and  services,  contracts  which  materially  afiect  the 
rights  of  propert}'  of  private  individuals,  which  were  respected  in  the 
treaties  of  Campo  Formio  of  1797.  of  Paris  of  1814.  of  Zurich  of  1859, 
of  Paris  of  180(>,  of  Vienna  of  iSi'A  and  1866,  and  which  (fermany 
respected  also  when  ending  the  war  with  France  by  the  treaty  of 
Frankfort  of  1871.  The  Amei-ican  Commission  alleged  as  its  only 
reason  for  this  refusal  that  the  United  States  in  its  treaties  has  never 
recognized  these  contracts,  as  though  the  United  States  were  the  only 

"Mr.  Sheniiun,  St\'.  of  State,  to  Mr.  Vignaud,  cliarire  d'affaires  ml  inltriin,  Aug. 
12,  1897,  For.  Kel.  1S97,  157.  See,  however,  in  tlii."  relation,  Florida  v.  Furman 
(lyUlj,  180  U.  S.  402;  Barker  v.  Harvey  (1901),  181  U.  S.  481. 


390  sovereignty:  its  acquisition  and  loss.  [§98. 

power  controllini^  the  .staudjird  of  justice  which  must  govern  the  con- 
ventions and  the  acts  of  nations." 

The  American  Commissioners,  in  a  memorandum  accompanying 
protocol  No.  22,  Dec.  10,  1898,  replied: 

"The  American  Commission  felt  constrained  to  reject  the  articles 
tendered  In'  the  Spanish  Commissioners  in  respect  to  contracts  entered 
into  for  public  works  and  services.  It  took  this  step  because  the 
nature,  extent  and  binding  obligation  of  these  conti'acts  are  unknown 
to  the  American  Commissioners,  and  they  again  disclaim  any  purpose 
of  their  Government  to  disregard  the  obligations  of  international  law 
in  respect  to  such  contracts  as  investigation  ma}'  show  to  be  valid  and 
binding  upon  the  United  States  as  successor  in  sovereignty  in  the 
ceded  territory." 

Senate  Doc.  62,  55  Cong.  3  sess.,  part  2,  pp.  240,  241,  258,  262. 

In  relation  to  the  alleged  claim  of  Michael  J.  Dady  &.  Co.  as  to  cer- 
tain conti-act  relations  between  them  and  the  citv  of 
Caban  cases.  ,  .  .  i    •       i  ' 

Havana  for  sewers  and  pavmg.  it  was  advised  that  the 

question  whether  the  claims  ought  to  be  recognized  and  confirmed  as 
subsisting  contracts  should  be  left  to  the  decision  of  the  authorities  of 
Havana,  and  that*,  as  the  administration  of  the  United  States  in  Cul)a 
was  of  a  military  nature,  and  merely  temporary,  no  action  binding 
the  island  or  any  of  its  municipalities  to  large  expenditures  and  con- 
tinuing debt  ought  to  be  made  unless  on  grounds  of  immediate 
necessity. 

Griggs,  At. -Gen.,  Jan.  19,  1899,  22  Op.  310. 

A  concession  in  due  form  to  construct  certain  tramways  in  the  city 
of  Havana  was  granted  to  one  de  la  Torre  in  1892.  notwith.^tanding 
the  objection  of  a  rival  compan}',  which  claimed  the  right  under  a 
royal  decree  of  February  5.  1859.  in  which  the  right  to  grant  new 
concessions  was  reserved  to  the  Crown.  Subsequently  the  same  con- 
cession was  advertised  at  public  auction  and  sold  to  de  la  Torre,  the 
rival  company  failing  to  bid.  Advised,  that  the  owners  of  the  de  la 
Torre  concession  have  "x  prl nm  fade  right  to  proceed  at  their  own  risk, 
under  the  permission  of  the  municipal  authorities. 

The  military  order  of  December  21,  1898,  forbidding  the  making  of 
any  grant  or  concession  in  the  future,  was  not  intended  to  apply  to 
those  previously  made  in  due  form. 

Griggs,  At. -Gen.,  July  10,  1899,  22  Op.  520.  For  a  report  ami  decision  hold- 
ing the  contract  l>etween  the  United  Railways  of  the  Habana  and  Regla 
Warehouses  (Limited),  and  the  Cuban  and  Pan-American  f>xpress  Co.  to 
l>e  valid  and  lawful,  see  Magoon's  Report.*,  534.  Concerning  the  conces- 
sion owned  by  the  Habana  Canal  Company  to  canalize  theMatadenj  River, 
see  Magoon's  Reports,  571,  579.     See,  also,  Magoon's  Reports,  534. 


§  98.1  CONTRACTS    AND    CONCESSEONS.  391 

"A  report  by  the  law  otiieer  of  the  Divi.><ion  of  Insular  Aii'airs  in 
the  matter  of  the  conce.ssion  to  canalize  the  Matadero  River  is  inclosed 
herewith,  bearing-  my  approval. 

"It  is  evident  that  some  confusion  has  existed  in  the  treatment  of 
such  subjects  in  Washing-ton  and  Habana,  arising-  from  the  widel}' 
different  systems  of  law  and  judicial  procedure,  which  form  the  point 
of  departure  for  opinions  and  decisions  rendered  in  the  two  places. 
The  same  terms  used  in  the  differtMit  places  sometimes  carry  wddely  dif- 
ferent meanings.  The  principle  to  which  the  Department  has  endeav- 
ored to  adhere,  and  which  was  definitely  determined  upon  at  the 
beginning  of  your  administration  of  Cuba,  is  that  such  decisions  as 
the  Department  makes  upon  questions  of  this  character  will  be  limited 
to  decisions  for  the  purpose  of  guiding  administrative  action,  and  that 
the  Department  will  not  undertake  to  perform  the  functions  of  a  court 
to  determine  rights  of  individuals.  The  decision  made  in  the  Mata- 
dero Canal  case  on  the  5th  of  October,  1899,  was  of  this  description. 
It  was  not  designed  to  determine  the  rights  of  the  persons  claiming 
the  concession,  but  to  detewnine  the  duties  of  the  military  administra- 
tion of  Cuba  in  its  administrative  treatment  of  that  concession,  and 
the  fourth  clause  of  that  decision  was  supposed  to  adequately  express 
that  limitation. 

"The  secretary  of  public  works  apparently  gave  to  the  decision 
that  the  concessionaires  had  a7>/'////rt/'</C7V  right  a  much  more  extended 
and  unwarranted  force  when  he  declared  that  the  prima  facie  right 
had  the  force  of  an  undisputed  right  until  declared  to  be  7iuU  by  the 
proper  authority.  The  decision  made  by  the  War  Department  gave 
no  force  or  effect  whatever  to  the  concession  when  presented  to  a 
court,  relieved  the  concessionaires  from  no  burden  of  establishing  their 
rights  in  court,  and  had  no  effect  whatever  except  as  governing  the 
action  of  the  administrative  officers  of  the  military  government.  It 
required  that  you  should  withdraw  the  prohil)ition  which  3'our  pred- 
ecessor had  established  by  military  order  against  the  exercise  of 
whatever  rights  the  concessionaires  ma}'  have  had,  leaving  the  conces- 
sionaires to  prosecute  their  rights  precisely  as  if  that  military  order 
had  never  been  given.  That  course  should  l)e  followed  now.  The 
withdrawal  of  that  order  Avill  not,  however,  prevent  the  militar}^ 
government  from  disputing  in  an}'  court  of  competent  jurisdiction 
the  validity  of  the  concession,  either  as  complainant  or  as  defendant, 
just  as  any  individual  whose  rights  may  be  affected  may  dispute  it, 
and  in  any  such  proceeding  the  claimants  of  rights  under  the  con- 
cession will  be  bound  to  esta])lish  their  rights  precisely  as  if  no  such 
decision  had  been  made;  nor  does  this  decision,  or  the  withdrawal  of 
the  prohibitory  order  under  it,  prevent  the  taking  of  the  customary 
proceeding,  in  case  the  concession  should  be  held  to  be  valid,  for  its 
annulment  upon  the  ground  that  it  is  detrimental  to  the  public  interests. 


392  sovereignty:  its  acquisition  and  loss.  [§98. 

•'There  is  one  matter  upon  which  the  decision  of  the  Department, 
however,  is  conclusive,  and  which  is  not  deemed  to  be  open  for  deter- 
mination by  an}'  court,  and  that  is  upon  the  power  of  the  Spanish 
Government  to  grant  such  a  concession  on  the  28th  of  August,  1898. 
That  is  a  political,  not  a  judicial,  question,  and  the  view  taken  by  the 
Department  is  that  the  date  itself  is  not  conclusive.  Each  such  case 
must  be  considered  by  itself  on  its  own  merits.  Acts  of  Spain  in 
Cuba  between  the  signing  of  the  protocol  and  the  evacuation,  done  in 
good  faith  and  in  the  ordinary  exercise  of  governmental  powers,  are 
to  be  treated  as  the  valid  acts  of  a  government  de  facto,  while  acts 
done  for  the  purpose  of  withdrawing  or  withholding  property  or  valu 
able  rights  from  the  government  about  to  succeed,  and  not  done  in 
good  faith  for  the  legitimate  purposes  of  government,  are  to  be  treated 
as  invalid." 

Mr.  Hoot,  Sec.  of  War,  to  Maj.  Gen.  Wood.  Military  (Governor  of  Cuba,  May 
29,  1901.  Magoon's  Reports,  594-595. 

•'1  have  the  honor  to  acknowledge  receipt  of  3'our  communication 
of  June  .5i  1901,  respecting  the  concession  for  canalization  of  Matadero 
Creek,  Habana,  and  requesting  further  explanation  of  the  administra- 
tive policy  adopted  by  the  War  Department  with  reference  to  alleged 
concessions  granted  by  the  Spanish  government  of  Cuba  after  the 
protocol  of  August  12,  1898,  was  signed.  In  answer  thereto  allow  me 
to  say: 

"The  United  States,  on  August  12,  1898,  by  reason  of  successful 
military  operations,  had  induced  Spain  to  sue  for  peace  and  was  in  a 
position  to  require  Spain  to  comply  with  its  demands.  But  the  United 
States  had  not  effected  a  complete  conquest  of  all  Cuba,  because  all 
parts  of  the  island  were  not  in  possession  of  our  military  forces. 
Under  the  laws  of  war,  as  long  as  Spain  continued  in  possession  of 
territory  in  Cuba,  so  long  Spanish  sovereignty  continued  over  that 
particular  territory,  and  the  proprietary  title  in  and  to  public  property 
therein  situate  belonging  to  the  Crown  under  Spanish  law  would 
remain  with  the  Crown  of  Spain,  While  this  condition  continued,  the 
Government  of  Spain  would  be  justitied  in  exercising  sovereign  powers 
in  said  territory,  and  the  Crown  of  Spain  would  ])e  justitied  in  exercis- 
ing the  ordinary  privileges  appurtenant  to  the  proprietary  title  of 
public  property  luider  the  laws  of  Spain,  provided  such  action  as  was 
taken  was  in  good  faith,  i.  e..  with  due  regard  to  the  rights  of  its 
adversary. 

"This  condition  was  terminated  by  the  treaty  of  Pans.  By  that 
instrument  sovereignty  and  title  in  Cuba  (art.  1)  and  proprietary  title 
to  the  public  property  in  the  island  (art.  S)  were  relinquished  by  Spain, 
and  provision  made  that  '  upon  its  evacuation  by  Spain  '  the  island  was 
to  be  ■  occujjied  by  the  United  States.'  and  that  the  Ignited  States 
should  '  so  long  as  such  occupation  shall  last  assume  and  discharge  the 


§  ^8.]  CONTRACTS    AND    CONCESSIONS.  393 

obligations  that  may  under  international  law  result  from  the  fact  of  its 
occupation.'  .   .   ,     (Art.l.) 

''The  right  of  the  United  States  to  administer  sovereign  powers  in 
Cuba,  and  its  right  to  the  proprietar}"  title  of  public  property  there- 
tofore possessed  b}^  the  Crown  of  Spain,  were  completed  by  and  date 
from  the  treaty  of  Paris,  December  10, 189S.  It  is  therefore  inaccurate 
to  say  'all  these  grants  involved  property  or  valuable  rights  hAong'uuj 
to  tJte  future  government  of  Citha.' 

'"When  attempt  is  made  to  exercise  rights  under  an  alleged  conces- 
sion purporting  to  have  been  granted  by  officials  of  the  Spanish  gov- 
ernment of  Cuba,  after  the  signing  of  the  protocol  of  August  12,  1898, 
the  military  government  of  Cuba  is  required  to  consider  the  matter  in 
two  phases,  the  first  being — 

''  Was  said  grant  justified  bj^  the  laws  of  war?  That  is  to  say:  {a) 
Was  Spain  in  possession  of  the  territory  affected?  {h)  Was  the  sover- 
eignty of  Spain  attached  thereto?  (e)  Did  Spain  act  in  good  faith 
toward  its  adversar}'  ? 

"The  second  phase  is — 

•'Was  said  grant  justified  by  the  laws  of  Spain?  That  is  to  say: 
{a)  Was  the  grant  authorized  b}"  the  laws  of  Spain  ?  {h)  Were  the 
requirements  of  the  Spanish  law  fulfilled  in  making  said  grant? 

'•The  first  phase  is  to  be  passed  upon  and  the  questions  involved 
determined  by  the  authorities  charged  with  maintaining  the  rights  and 
promoting  the  purposes  of  the  United  States  in  Cuba,  for  the  reason 
that  said  questions  involve  the  relative  and  respective  rights  of  the 
United  States  and  Spain  as  afi'ected  by  a  war  in  which  the  United 
was  the  victor.  In  matters  of  this  character  the  official  so  charged  is 
the  military  governor. 

"The  second  phase  is  to  be  passed  upon  and  the  questions  involved 
determined  by  the  judicial  branch  of  the  military  government  of  Cuba, 
for  the  reason  that  the  determination  of  said  questions  requires  the 
exercise  of  judicial  functions  ordinaril}^  performed  b}^  courts,  and  the 
administrative  policy  in  Cuba  is  to  permit  the  courts  to  perform  those 
functions  of  government  termed  judicial.  In  determining  the  ques- 
tions properly  to  be  considered  by  him,  the  military  governor  should 
exercise  care  not  to  preclude  the  possibility  of  the  courts  examining 
and  determining  the  questions  involved  in  the  second  phase. 

••  Where  the  military  governor  determines  in  favor  of  a  concession 
the  determination  should  be  declared  as  follows: 

"'The  United  States  makes  no  objection  to  this  alleged  grant  bv 
Spain,  nor  to  the  terms  and  conditions  thereof  (insert  description); 
provided  said  alleged  grant  was  made  pursuant  to  lawful  authoritj^ 
and  procedure  under  the  laws  of  Spain  in  force  in  the  territory  to 
which  the  concession  appertains  at  the  time  the  grant  was  made.  The 
questions  of  authoi'it}-  and  procedure  under  Spanish  law  are  to  be 


894  sovereignty:  its  acquisition  and  loss.  [§98. 

detei'inined  by  the  courts  of  Cuba  when  involved  in  cases  properl}" 
pendini"'  therein.' 

••  When  the  determination  is  against  a  concession  it  should  be 
declared  as  follows: 

••  'The  United  States  objects  to  this  alleged  grant  ))v  Spain  (insert 
description),  and  refuses  to  recognize  the  same  as  valid.  Therefore 
the  military  government  of  Cuba  prohibits  the  assertion  or  exercise  of 
any  rights  or  privileges  thereunder.'" 

Mr.   Root,  Sec.  of  War,  to  Maj.  Gen.  Wood.   Milit.  Gov.  of  Cuba,  June  21, 
1901,  Magoon's  Report,s,  602-60:S. 

A  citizen  of  Porto  Rico  applied  to  the  Secretary  of  War  in  1899  for 
a  concession  of  the  right  to  use  the  water  power  of  the 
cases.  river  Plata  in  Porto  Rico.      It  appeared  that    under 

the  Spanish  law  in  Porto  Rico,  prior  to  the  cession 
to  the  United  States,  the  Crown  of  Spain  was  the  owner,  for  public 
use.  of  the  proprietary  rights  of  the  natural  beds  or  channels  of  rivers, 
both  navigable  and  ininavigable.  to  the  extent  covered  by  the  waters 
in  their  ordinary  greatest  swells.  It  seemed  that  the  applicant,  before 
the  cession,  had  taken  the  preliminary  steps  which  would  have  ena- 
bled him  to  apply  to  the  governor  of  the  province  for  the  desired  con- 
cession. ])ut  that  he  had  not  in  fact  obtained  such  a  grant  from  the 
govt'rnor  when  the'  powers  of  that  official  ended.  Advised,  that  if  at 
the  time  when  the  treaty  of  cession  took  effect  the  applicant  had  had 
a  completed  and  vested  right  to  the  u.>^e  of  the  waters  of  the  river,  that 
right  would  be  respected  by  the  United  States,  but  that,  as  it  appeared 
that  l)y  the  Spanish  law  the  granting  of  the  desired  concession  after 
the  preliminary  steps  were  taken  was  a  matter  of  discretion,  resting 
in  the  judgment  of  the  governor  of  the  province,  who  was  the  royal 
representative,  no  vested  legal  right  had  been  acc(uired.  and  that  the 
President,  acting  through  the  War  Department,  had  no  power  to 
grant  the  application,  the  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  of  the 
United  States  being  vested  by  the  Constitution  in  Congress. 

Grigg«,  At.-(ien..  .Tuly  27,  1S9U,  22  Op.  546.  The  Attorney  General,  in  the 
course  of  lu.«  opinion,  .stated  that  lie  was  unable  to  agree  with  the  opinion 
I  expresseil  in  the  report  of  the  law  officer  of  the  War  Department  that  the 
application  tile<l  under  tlie  Spani.sh  law  wa.-^  to  be  considered  a.s  similar  to 
a  homestearl  entry  under  the  laws  of  the  United  States.  See  Magoon's 
Reports,  4H."). 

Under  Spanish  law  a  tramway  is  a  railroad  constructed  on  a  public 
highway. 

A  concession  for  the  construction  of  a  certain  electric  tramwa}'  in 
Porto  Rico  Ix'ing  inchoate  and  incomplete  and  lacking  certain  public 
action  necessary  to  be  taken  by  the  public  authorities  representing  the 


§  98-]  CONTRACTS    AND    CONCESSIONS.  395 

Crown  of  Spain  before  it  could  go  into  effect  as  a  complete  grant,  the 
War  Department  has  no  authority  to  grant  or  complete  .such  concession. 

Griggs,  At. -Gen.,  July  28,  1899,  22  Op.  5."il.     See,  aho,  ^lagoon's  Reports,  482. 

The  Manila  Railway  Co.,  Limited,  a  British  corporation,  obtained 

from  the  Spanish  Government  a  concession,  continued 
Case  of  the  Manila  ,  ,    i  ..  .  i  ,.  -» r      •  i      .      t-v 

Railway  Co,       '^X  royal  decree,  for  a  railway  from  ^Manila  to  Uagu- 

pan,  island  of  Luzon,  a  distance  of  about  130  miles. 
By  the  terms  of  the  concession  the  Spanish  Government  guaranteed 
a  return  of  8  per  cent  per  aniuim  on  the  capital  invested,  which  origi- 
nally amounted  to  $4,964,400.  but  which  was  subsequently  increased, 
with  the  concurrence  of  the  Spanish  authorities,  to  §^5,353,700.89. 
The  Spanish  (lovernment  fultilled  this  obligation  ])y  paying  the  sub- 
vention in  quarterly  installments  till  the  war  with  the  LTnited  States. 
After  the  ratification  of  the  treaty  of  Dec.  10,  1898,  by  which  the 
Philippines  Avere  ceded  to  the  United  States,  the  railway  company 
made  a  claim  against  the  United  States  for  the  payment  of  the  quar- 
terly in.stallments  due  ]\larch  31,  June  30,  and  Sept.  30,  1899,  amount- 
ing in  all  to  ^237,008.97. 

Advised,  that  the  obligation  in  question  was  to  be  considered  as  the 
personal  obligation  of  Spain,  and  that,  as  it  was  not  assumed  by  the 
United  States  in  the  treaty  of  peace  and  cession,  it  did  not  pass  with 
the  sovereignty  of  the  islands  to  the  United  States. 

Report  of  'Sir.  Magoon,  law  officer,  Division  of  Insular  Affaii-s,  Dec.  21,  1899, 
approved  by  the  Secretary  of  War,  ]\Iagoon'.s  Reports,  177.  "As  the  case 
now  stands  the  company  has  the  obligation  of  the  National  Government 
of  Spain.  Tp  to  this  time  the  rejjresentatives  of  the  United  States  author- 
ized to  bind  it  have  refused  to  a.ssume  said  obligation.  The  most  the 
railway  company  can  assert  is  that  said  obligation  of  the  Spanish  (jovern- 
ment  has  now  become  a  charge  upon  the  conscience  of  the  sovereign 
people  of  the  United  States.  If  it  were  conceded  that  said  obligation  had 
become  a  charge  upon  the  conscience  of  the  sovereign  people  of  the  United 
States,  the  manner  in  which  and  extent  to  which  the  duty  so  created  is  to 
be  discharged  must  be  determined  by  Congress."     (Id.  193.) 

"I  have  th(^  honor  to  acknowledge  receipt  of  th(^  following  request 
for  an  opinion: 

'"War  Department, 
'"  Washhu/ton,  July?.,  1900. 

"  'Sir:  I  have  the  honor  to  inclose  herewith  papers  relating  to  the 
claim  of  the  Manila  Kailway  Compan3%  Limited,  for  (juartcrly  sub- 
ventions under  the  concession  granted  it  ])V  Spain,  and  to  request  your 
opinion  as  to  what  obligations,  if  any,  exist  under  said  concession 
either  against  the  revenues  of  the  Philippine  Islands  or  those  of  the 
United  States;  and  if  any  such  o))ligations  do  exist  as  to  what  action 
can  legallv  be  taken  in  recognition  and  settlement  thereof  bv  the  exec- 


396  SOVEREIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  98. 

utive  department  of  the  United  States  or  the  mihtary  government  in 
those  islands. 

'••With  these  papers  are  inclosed  a  copy  of  the  note  of  the  British 
ambassador  at  this  capital,  and  of  the  report  of  the  law  officer  of  the 
division  of  customs  and  insular  affairs. 
'•'Very  respectfully, 

' ' '  Elihu  Root,  Seo'etarij  of  ^Var. 

'• '(Inclosures:)  Copy  of  Judge  Magoon's  report,  849  and  incs. 
1  to  40,  except  18  and  29,  with  p.  c.  The  return  of  which  papers  is 
requested.' 

•'I  perceive  that  the  subvention  as  claimed  is  calculated  from  Janu- 
ary 1,  1899.  This  date,  of  course,  was  more  than  three  months  before 
the  ratifications  of  the  Treaty  of  Paris  w^ere  exchanged,  and  therefore 
before  the  sovereignty  of  Spain  over  the  Philippines  was  formallv  ter- 
minated. So  far  as  there  may  be  a  liability  of  the  sovereign  Govern- 
ment as  distinguished  from  that  of  the  Philippine  Islands  or  provinces 
therein,  it  would  seem  necessary  to  consider  w^hether  the  concession- 
aire must  not  look  to  Spain  rather  than  to  the  United  States  for 
indebtedness  accruing  prior  to  such  exchange  of  ratifications. 

"The  facts  seem  to  be  that,  according  to  the  method  familiar  to 
Spain,  a  project  of  a  railway' from  ]Manilato  Dagupan,  on  the  northern 
coast  of  Luzon,  was,  in  pursuance  of  a  royal  decree  of  the  9th  of  April, 
1885,  made  the  subject  of  a  public  auction  held  at  Madrid  and  also  at 
Manila.  At  that  auction  Mr.  Edmund  Sikes  Hett  was  the  only  bidder, 
and  by  a  royal  order  of  the  21st  of  January,  1887,  he  was  declared  the 
concessionaire  authorized  to  })uild  the  road.  Afterwards  ]Mr.  Hett 
duly  assigned  his  I'ights  to  the  company  mentioned  by  3'ou,  and  that 
company,  an  English  corporation,  proceeded  to  construct  the  road,  and 
now  owns  it,  and  prefers  a  claim  against  the  United  States,  or  whom, 
it  ma}'  concern,  to  be  paid  certain  sums  of  money  in  accordance  with 
the  terms  of  the  concession. 

'•The  royal  decree  tirst  ref<M"red  to,  dated  the  9th  of  April,  1885, 
was  as  follows: 

'•'Art.  1.  The  Government  will  assist  the  construction  of  the 
railway  from  Manila  to  Dagupan,  guaranteeing  an  interest  of  8  per 
cent  per  annum  on  the  capital  which  is  spent  on  the  works,  reserving 
to  itself  the  right  to  I'ecoup  itself  the  tiro-f/i/rds  jj<(/-f  of  the  amonntx 
v'hich  for  tJiiM jnirjK>.s(-  it  iiKty jxdj  from  the  loeaJ  fuHd><  helonghnj  to  the 
provinct'.s  irhlcJi  the  aforcsdid  line  cro.sse^t,  hi  accordanee  v'dh  the  prac- 
tice.s  extiddixhiil  for  otto  r  jxihllc  morhs  In  the  Philippine  Ixland.s. 

"•Art.  2.  The  sul>vention  with  which  the  concessionaire  shall  be 
assisted  shall  be  paid  overeverN'  three  months,  handing  over  at  the  end 
of  every  term  the  amount  which  belongs  to  th(»  section  or  sections  work- 
ing during  the  three  months,  for  guaranteed  interest. 


§  98.]  CONTRACTS    AND    CONCESSIONS.  397 

"'The  quantity  which  shall  be  paid  every  three  months  as  subven- 
tion shall  be  determined  b}'  discounting  from  the  amount  which  repre- 
sents the  guaranteed  interest  corresponding  to  the  section  or  sections 
in  working,  50  per  cent  of  the  gross  products  of  the  aforesaid  working. 

"'When  the  50  per  cent  of  the  gross  products  of  the  working 
exceed  the  amount  which  represents  the  guaranteed  interest  the 
excess  shall  be  divided  equally  between  the  concessionaire  and  the 
treasury. 

'"Art.  3.  The  maximum  capital  which  shall  receive  the  interest  of 
8  per  cent  per  annum,  and  which  shall  serve  as  a  type  for  the  auction 
for  the  concession  of  the  line,  is  fixed  in  -l.yBij-iTS.Go  pesos.' 

"The  amount  of  capital  appears  to  have  been  increased  to  the  extent 
of  about  a  million  pesos.  It  appears  that  the  pesos  in  question  were 
held  by  the  courts  of  Spain  to  be  payable  in  the  Philippine  Islands, 
and  that  they  were  therefore  Philippine  pesos,  the  value  of  which  is  a 
matter  of  importance  in  the  disposition  of  this  claim  as  regarded  by 
me. 

'"As  was  likewise  usual  in  such  cases,  a  schedule  of  special  condi- 
tions was  published  in  advance  of  the  auction,  giving  details  of  the 
work  to  be  done  b}'  the  concessionaire,  the  point  at  which  the  road 
was  to  start,  referring  to  royal  orders  and  decrees  to  which  the  whole 
business  was  to  be  conformed,  specifying  the  stations  and  the  kinds 
or  classes  of  stations,  the  amount  and  character  of  rolling  stock,  pro- 
viding for  the  establishment  of  an  electric  telegraph  line  and  the  use 
of  it  by  the  concessionaire  and  by  the  Government,  and  many  other 
details  expressed  in  33  articles.  This  schedule  of  special  conditions 
was  dated  the  same  9th  of  April,  1885.  Among  the  articles  were  the 
following: 

"  '4.  The  Government  shall  aid  the  construction  of  the  line  by  guar- 
anteeing eight  per  cent  annual  interest  on  the  capital  employed  therein. 

■"'10.  .  .  .  The  sum  which  the  trauury  of  tJie  PhUlppine 
hhiiuh  is  to  pay  quarterly  as  subvention  shall  V)e  fixed  by  deducting 
from  the  sum  representing  the  guaranteed  interest  corresponding  to 
the  section  or  sections  in  working  50  per  cent  of  the  gross  proceeds  of 
such  working. 

"'18.  The  electric  telegraph  of  the  line  shall  be  established  for  the 
service  of  the  same,  but  the  concessionaire  shall  be  l)ound  to  place  as 
many  as  four  wires  for  the  telegraph  of  the  State,  inunediately  the 
4^overnment  of  the  island  shall  so  require  him,  there  being  for  his 
account  the  establishment  and  maintenance,  and  for  account  of  the 
State  the  service  of  the  official  and  private  correspondence.  The 
Government  and  the  concessionaire  may.  however,  agree  that  the 
functionaries  of  the  former  shall  carrv  on  the  telegraphic  service  of 
the  railwav. 


398  sovereignty:  its  acquisition  and  loss,  [§98. 

'•'The  (,'oncessionaire  shall  furnish  the  locale  necessaiy  for  the  tele- 
ora])!!  station  of  the  Government  at  the  railway  stations  where  it  may 
ho  thought  proper  to  have  them,  the  esta))lishment  of  such  stations 
and  their  maintenance  and  service  being  for  account  of  the  State. 

*•  'He  shall  also  furnish  the  locales  necessary  for  the  inspections  of 
the  Government. 

'• 'He  shall  also  provide  in  the  trains  determined  upon,  the  locale 
corresponding  to  the  services  of  mails,  the  carriage  whereof  shall  have 
to  be  always  gratis,  as  also  the  carriage  of  the  correspondence  in  all 
other  trains. 

•"The  transports  of  the  State,  both  civil  and  military,  and  those  of 
prisoners  or  persons  for  trial,  shall  be  effected  for  a  moiet}'  of  the 
tariff  prices. 

'■"22.  The  concessionaire  shall  be  subject  to  the  tariff  of  maximum 
prices  of  toll  and  transport,  which  tariff'  may  be  revised  and  amended 
by  the  Government  in  accordance  with  what  is  expressed  in  article  32 
of  the  royal  decree  aforesaid  of  the  6tli  August,  1875. 

"  *  23.  The  concession  is  granted  for  99  years,  according  to  these  con- 
ditions, and  to  the  tariff's  approved  and  subject  to  all  that  is  provided 
by  the  said  royal  decree  of  the  Hth  August,  isTo. 

•"'27.  I'pon  the  expiration  of  the  term  of  the  concession  the  State 
shall  acquire  the  line  with  its  rolling  stock  and  all  its  dependencies, 
entering  into  full  ownership  thereof  and  in  the  full  enjoyment  of  the 
right  of  working  it." 

**lt  is  apparent  that  this  contract  was  recognized  as  one  of  utility  to 
the  Government  of  Spain,  and  one  of  benetit  to  the  provinces  in  the 
island  of  Luzon  through  which  the  road  was  to  pass.  Ultimatel}",  as 
we  may  infer  from  the  royal  decree  of  April  9.  1885,  those  provinces 
were  to  bear  two-thirds  of  the  expenses  of  the  guarantee.  The  whole 
guarantee  was  to  be  paid  from  the  Philippine  treasury;  l)ut  I  do  not 
understand  that  to  mean  that  it  was  to  be  paid  wholh'  from  moneys 
belonging  to  the  local  funds  of  the  Philippines,  but  ultimately,  to  the 
extent  of  one-third,  from  the  royal  or  peninsular  funds  in  the  Philip- 
pine treasury:  or.  at  all  events,  as  in  part  a  subsidy  recognized  by  the 
general  policy  of  Spain  as  chargeable  to  herself. 

"All  of  the  colonial  laws  and  regulations  of  Spain  concerning  public 
works,  railroads,  and  the  police  of  railroads  in  the  Philippines  are  not 
before  me:  and  I  have  examined  principally  those  concerning  Cuba 
and  Porto  Pico,  which  are  chiefly  an  extension  to  the  colonies  of  the 
ones  in  force  in  the  Peninsula.  I  have  examined  also  divers  concessions 
concerning  railroads,  cables,  etc.,  in  Cuba  and  the  Philippines.  The 
same  procedure  seems  to  have  been  pursued  in  the  Philippines  as  else- 
where. I  therefore  <[uote.  as  throwing  light  upon  the  present  con- 
cession, the  following  article  of  the  law  of  railroads  for  Spain,  Cuba, 
and  Porto  Rico,  extended  to  Cuba  in  ls,s3  and  pronuUgated  in  Porto 
Rico  in  1888: 


§  98.]  CONTEACTS    AND    CONCESSIONS.  399 

'"Art.  13.  The  provinces  and  towns  directly  interested  in  the  con- 
struction of  a  line  of  general  service  shall  contribute  with  the  State  to 
the  subsidy  granted,  in  the  proportion  and  manner  prescribed  In*  the 
law  referred  to  in  Article  11.;  i.  e.,  the  special  law  granting  the  con- 
cession.' 

"In  article  50  of  the  regulations  for  executing  that  law,  we  read: 

'"If  the  aid  consists  of  the  deliverv of  a  sum  in  specie  or  bonds  and 
stocks,  it  shall  be  paid  to  the  company  in  the  form  and  time  stipulated, 
always  on  a  certificate  of  the  engineers  of  the  State  charged  with  the 
inspection.  The  payment  of  the  subsidies  in  these  cases  shall  be  made 
to  the  company  by  the  Government  directly,  and  the  (jovernment  in 
its  turn  shall  be  paid  by  the  jirovince  and  the  town  the  part  of  the 
subsidy  devolving  upon  them,  as  determined  ))y  the  law.  *  *  * 
(Thus  far  the  regulation  is  identical  with  that  of  18TT  for  Spain, 
extended  to  Cuba  in  1883.)  If  the  subsidy  consists  of  the  exemption 
of  customs  duties,  the  formalities  determined  in  the  existing  provisions 
or  those  provided  in  the  futui-e  by  the  proper  hnv  or  regulations  shall 
be  complied  with.  If  the  subsidy  consists  in  the  guaranty  of  interest, 
there  shall  be  paid  semiannually  to  the  company  ])y  the  public  treasur}' 
of  the  island  the  difference  l)etween  the  net  earnings,  after  deducting 
what  is  provided  for  in  the  special  clauses  of  the  concession,  and  the 
said  interest.  When,  during  four  consecutive  periods  of  six  months, 
the  net  earnings  of  the  operation  shall  equal  or  exceed  the  interest 
guaranteed,  the  right  to  such  interest  shall  cease;  but  the  treasury 
may  continue  to  collect  half  of  the  excess  on  the  said  interest  until  it 
shall  have  been  repaid  for  the  advances  made,  if  it  has  been  so  stip- 
ulated in  the  special  clauses  of  the  concession.' 

"The  contract  of  concession  has  not  been  fully  executed,  but  was,  in 
some  respects,  to  remain  executory  for  eighty-seven  years.  It  was  a 
contract  between  the  Spanish  Government  and  the  railroad  compan^^ 
The  promises  were  made  by  the  one  to  thQ  other.  I  am  of  opinion 
that  an  identical  contract  between  the  United  States  and  the  com})any 
was  not  created  by  the  ratification  of  the  Treaty  of  Paris,  and  does 
not  exist. 

"  We  need  not  inquire  whether  the  contract  would  now  survive  had 
the  Philippine  government,  or  the  provincial  deputations,  regarded  as 
autonomous  or  even  as  merely  part  of  the  royal  Government,  made  it. 
and  had  the  benefits  of  it  been  wholly  received  by  the  province's  or 
archipelago.  For  the  contract  was  made  by  Spain  and  partly  for  her 
own  benefit.  It  was  the  indivisible  personal  contract  of  Spain  and  of 
the  concessionaire. 

"It  seems  to  be  the  consensus  of  opinion  among  authorities  on  inter- 
national law  that,  upon  the  separation  of  part  of  a  country  from  the 
sovereignty  over  it,  debts  created  for  the  benefit  of  the  departing  por- 
tion of  the  country  go  with  it  as  charges  upon  its  government. 


400  SOVEREIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  98. 

"Hall's  International  Law  (4th  ed.),  p.  98. 

"Rivier,  Droit  des  Gens,  Tome  1,  pp.  70,  72. 

"Calvo,  Le  Droit  Intern'l,  T.  1,  sec.  101;  T.  4,  see.  2487. 

'^Phillimore's  Inter.  Law  (2d  ed.),  vol.  1,  pt.  2,  sees.  136,  137. 

"The  Tarquin,  Moore  on  Arbitrations,  vol.  5,  p.  4617. 

"Lawrence's  Wheaton's  Inter.  Law,  pp.  53,  54. 

"Wharton's  International  Law  Digest,  sec.  5. 

"Anglo  Saxon  Review,  June,  1899,  Mr.  Reed's  article  concerning 
the  Philippine  debt.  etc. 

"Dana's  Wheaton's  Intern.  Law,  sec.  30,  note. 

"Glenn's  International  Law,  sec.  28. 

"Field's  International  Code,  sees.  24  and  26. 

"Gardner's  Institutes  of  Intern.  Law,  p.  52. 

"Sen.  Doc.  62,  55th  Congress,  3rd  sess,,  pt.  1,  p.  50. 

"  Various  bases  are  given  for  an  obligation  of  a  locality  and  its  new 
government.  The  chief  one  is  that  a  benefit  goes  with  its  attached 
burden.  Another  is  the  legal  right  of  the  original  sovereign  to  bind 
the  locality  to  pa}^  any  debt,  even  if  not  for  local  benefit.  (Bluntschli, 
Droit  International,  sec.  59.)  A  third  is  the  possession  by  the  new 
government  of  the  funds  or  revenues  out  of  which  the  debt  was  to  be 
paid.  This  obviously  happens  in  the  case  of  a  revolutionary  govern- 
ment getting  control  of  the  whole  national  territory.  Still  another  is' 
the  fact  that  the  creditor  was  lawfully  induced  to  rely,  and  did  rel}^ 
upon  funds  which  are  now  in  the  possession  of  the  new  government. 
And  as  for  the  binding  or  mortgaging  of  the  locality,  it  is  not  to  be 
understood  that  more  is  meant,  or  now  commonly  practiced,  than  for 
a  sovereign  to  agree  that  certain  local  objects  or  revenues  should  be 
bound.  The  creditor  is  not,  as  formerly,  given  a  city  or  province 
in  mortgage,  with  a  right  of  sovereign  jurisdiction.  (Heffter,  Droit 
International,  sec.  71.) 

"As  for  the  nature  of  the  obligations  supposed  to  bind  the  locality, 
the}'  are  not  confined  to  simple  debts,  but  are  said  to  extend  to 
boundary  settlements,  right  of  navigating  rivers,  right  to  maintain 
monasteries,  colleges,  etc.     (Bluntschli,  Droit  International,  sec.  47.) 

"As  already  suggested,  all  the  promises  of  ever}'  contract  entered 
into  l)v  the  former  government  of  a  province  wrested  from  it  by  vic- 
tory in  war  do  not  transfer  themselves  to  the  new  government,  in 
defiance  of  the  natui'al  proposition  that  a  man  can  not  be  bound  by  a 
stranger's  promises.  But  ))enefits  may  be  received  by  a  province  as 
well  in  pursuance  of  a  personal  contract  of  the  sovereign  partly  for 
his  own  benefit  as  otherwise.  They  are  none  the  less  benefits  received 
and  retained  ))y  the  province,  and  if  the  burden  of  the  contract  itself 
does  not  go  with  them,  the  burden  of  an  obligation  to  do  equity 
toward  the  contractor  who  has  supplied  them  does  go  with  them. 


§  98.]  CONTKACTS    AND    CONCESSIONS.  401 

"There  is  an  obvious  difference  between  a  mere  debt  for  the  repay- 
ment of  a  loan  and  an  executory  contract  containing  many  stipulations 
to  be  performed  on  one  side  and  the  other.  Where  the  former  exists, 
and  there  are  thousands  of  bonds,  perhaps,  in  the  hands  of  individuals, 
second  or  third  holders  of  them,  it  would  be  obviously  inconvenient, 
and  seldom  necessary  to  the  ends  of  justice,  to  attempt  to  make  a  dis- 
tinction between  the  real  value  of  a  work  and  the  loan  obtained  by 
the  original  contracting  sov^ereignty,  so  as  to  confine  the  obligation  of 
the  succeeding  sovereign  to  such  real  value  of  the  work,  the  benefit 
of  which  he  gets. 

''There  is  also  a  clear  difference  between  ordinary  executory  con- 
tracts and  contracts  to  conve}^  lands.  Chief  Justice  Marshall  says,  in 
Soulard  v.  United  States  {-i  Peters,  .511): 

"■ 'The  term  ''property,"  as  applied  to  lands,  comprehends  every 
species  of  title,  inchoate  or  complete.  It  is  supposed  to  embrace 
those  rights  which  lie  in  contract;  those  which  are  executory,  as  well 
as  those  which  are  executed.  In  this  respect  the  relation  of  the 
inhabitants  to  their  government  is  not  changed.  The  new  govern- 
ment takes  the  place  of  that  which  has  passed  awa}".' 

"This  was  said  concerning  uncompleted  titles  to  the  public  domain 
in  Louisiana.  In  respect  to  public  domain  a  contract  to  convey 
would,  according  to  this  view  of  the  matter,  be  regarded  as  equitably 
diminishing  the  ownership  of  the  sovereign  who  contracted,  so  that 
he  could  not  afterwards  convey  an  unincumbered  title  to  a  third 
person.  Accordingly,  the  land  in  the  hands  of  the  third  person  might 
well  be  regarded  as  h  s  only  to  the  extent  that  it  had  not  so  been  con- 
tracted about.  But  this  would  not  mean  that  the  third  person  was 
substituted  as  a  contractor  for  the  original  contractor,  so  as  to  be 
obliged  by  the  obligations  which  he  had  never  stipulated.  It  would 
mean  merely  that  he  got  no  more  title  than  was  equitably  left  in  his 
grantor  at  the  time  of  the  grant. 

"The  concessions  here  in  question  are  executory  contracts,  not 
concerning  the  public  domain  owned  by  Spain,  but  containing  many 
personal  obligations  of  Spain  and  of  other  parties.  Spain  is  regarded 
by  the  law  of  nations  as  having  a  personality  of  her  own  distinct  from 
that  of  the  power  which  has  succeeded  her  in  control  of  the  ceded 
territor3^  and  I  am  not  aware  of  an}^  authority  for  saying  that  such 
personal  obligations,  either  on  the  part  of  the  Government  of  Spain 
or  the  other  contracting  parties,  become  binding  as  contractual  obli- 
gations upon  a  government  which  made  no  such  promises,  or  upon 
the  individual  toward  a  government  to  which  he  made  no  such 
promises.     Hall  says  (International  Law,  sec.  27): 

"  '  With  rights  which  have  been  acquired  and  obligations  which  have 
been  contracted  by  the  old  state  as  personal  rights  and  obligations  the 

H.  Doc.  551 26 


402  sovereignty:  its  acquisition  and  loss.  [§98. 

new  state  has  nothing  to  do.  .  .  .  The  new  state,  on  the  other  hand, 
is  an  entirely  fresh  being.  It  neither  is,  nor  does  it  represent,  the 
person  with  whom  other  states  have  contracted.  They  may  have  no 
reason  for  giving  it  the  advantages  which  have  been  accorded  to  the 
person  with  whom  the  contract  was  made,  and  it  would  be  unjust  to 
saddle  it  with  liabilities  which  it  would  not  have  accepted  on  its  own 
account.' 

"The  fact  that  in  certain  treaties  of  cession  contracts,  regularly 
entered  into  for  objects  of  public  interest  specially  concerning  the 
ceded  territory,  are  taken  over  by  the  new  sovereignty,  can  not  be 
accepted  as  proving  that  without  treaties  all  such  contracts  become 
obligatory  upon  the  acquiring  sovereignty.  The  stipulations  of  trea- 
ties are  sometimes  confirmatory  of  the  law  of  nations,  sometimes  dif- 
ferent from  it.  Presumably  they  should  be  regarded  as  not  identical 
with  it,  since  nations  may  well  be  presumed  not  to  make  unnecessary 
stipulations  or  fail  to  obey  the  law  of  nations. 

"  Calvo  (sec.  1»»1)  does  not  seem  to  regard  such  treaties  as  mere  repeti- 
tions of  the  law  of  nations;  and  Hall  (sec.  27,  note)  reminds  us  of  the 
motives  of  policy  which  govern  the  making  of  these  as  of  other  trea- 
ties. The  stipulations  are  no  doubt  the  result  of  the  existence  of  gen- 
eral principles  of  the  law  of  nations  concerning  debts  and  contracts 
as  affecting  an  acquiring  sovereignty;  but  those  principles  may  well 
fall  short  of  the  proposition  that  all  executory  contracts  )\v  the  cen- 
tral government  for  imperial  rights  and  privileges,  as  well  as  local 
benefits,  become  obligatory  as  such  contracts  in  all  their  terms  upon 
the  victorious  sovereign  acf|uiring  the  locality. 

"As  1  have  suggested,  these  concessions,  made  by  a  military  mon- 
archy for  cables  and  railroads  through  its  colonies,  were  by  no  means 
entered  into  without  regard  to  the  benefit  and  conveniences  of  the  cen- 
tral government  as  sovereign  over  the  colonies.  The}^  were,  and  this 
appears  upon  their  face,  concerning  instruments  with  which  the  mon- 
archy was  to  govern  more  easily  and  conveniently  the  subject  colonies, 
for  the  general  benefit  of  Spain  as  well  as  their  own. 

"To  regard  them  as  exclusively  for  local  benefit  would,  therefore, 
be  to  ignore  obvious  facts. 

"A  debt  or  executory  contract  bA' a  citv  or  province,  whether  made 
by  its  people  or  by  imperial  authorities  over  it.  for  gas  or  irrigation 
works  or  other  local  works,  including  railroads  of  only  local  use,  pre- 
sents another  cjuestion  altogether.  He  who  contends  that  the  liabilit\' 
in  such  a  case  is  destroA'ed  })y  a  mere  change  of  sovereignt\'  over  the 
city  or  province,  has  clearly  an  unjust  cause  to  maintain. 

"  It  may  well  be  that  the  treaties  in  question,  some  of  which  speak  of 
'contracts  for  objects  of  public  interest,  especially  concerning  the 
ceded  territory.'  intended  to  include  only  contracts  for  objects  which 
were,  or  were  supposed  to  be,  or  were  liberally  treated  as  being,  local 


S  98.]  CONTRACTS    AND    CONCESSIONS.  403 

objects,  and  not  contracts  for  combined  local  and  imperial  objects. 
Probably  neither  a  debt,  nor  even  an  executory-  contract  of  a  city  for 
gas  works,  or  of  a  province  for  irrigation  works  or  railroads  of  purel}' 
provincial  interest,  can  justh'be  repudiated  upon  a  change  of  imperial 
sovereignty,  whether  made  by  the  people  of  the  cit}"  or  province  or 
bv  imperial  agents  duly  authorized  to  act  for  either.  On  the  other 
hand,  to  charge  the  ceded  province  with  contracts  or  debts  for  imperial 
objects,  such  as  those  concerning  the  relations  between  the  central 
government  and  the  localit}',  can  not  be  justified  b}'  the  mere  fact  that 
the  contract  concerns  also  local  objects. 

"But  it  may  be  said  that  contracts  of  this  kind  may  properly  be 
charged  to  the  new  sovereignty,  which  will  be  interested  in  the  impe- 
rial objects  and  own  the  province.  The  old  machinery  for  holding 
and  ruling  the  province  can  serve  as  well  the  new  as  the  old  sover- 
eignty, and  therefore  the  law  requires  the  former  to  fulfill  the  con- 
tract made  by  the  latter. 

'•Such  a  principle  might,  perhaps,  be  conceded  if  it  were  a  fact  that 
the  relations  between  the  new  sovereignty  and  the  province  and  the 
uses  to  be  made  by  the  new  sovereignty  of  the  province  were,  or  could 
be  presumed  to  be,  identical  with  the  preexisting  relations  and  uses. 
But  a  presumption  of  the  kind  must  be  rested  upon  a  great  prepon- 
derance of  probabilities,  and  no  such  preponderance  exists.  Geo- 
graphically, politically,  commercially,  every  way,  a  province  or  piece 
of  territory  will  probabh'  have  different  relations  with  the  new  and 
the  old  sovereignty.  Take,  for  example,  the  colonv  of  Florida,  ceded 
by  Spain  to  the  United  States.  Of  what  use  has  Spain's  machinery 
for  exploiting,  holding,  and  governing  that  colony  been  to  the  United 
States '.  Take  Gibraltar  and  its  connection  with  Spain  and  England. 
Take  almost  every  instance  of  cession.  Even  in  the  instances  of  bor- 
der provinces  ceded  to  the  neighV)oring  nations,  machinery  for  dealing 
with  them  from  the  east  and  protecting  the  border  against  a  western 
eneni}'  would  ill  suit  the  western  sovereignty,  while  the  old  sovereign 
might  have  a  monarchical  and  the  new  a  democratic  and  autonomous 
system  governing  the  province. 

"Nor  should  we,  in  inquiring  whether  the  nations  have  consented 
to  a  rule  of  law  to  the  effect  that  contracts  made  by  the  old  sovereignty 
for  local  and  imperial  objects  shall  be  obligatory  as  such  upon  the  new 
sovereignty',  forget  the  extraordinary  effects  which  must  flow  from 
such  a  law.  What  is  there  that  mav  not  be  contracted  for  \  What 
imaginable  stipulations  ma\'  not  be  made:J  To  agree  in  a  treaty  to  be 
bound  b}-  actual,  known  contracts,  and  to  assent  to  a  law  about  con- 
tracts in  general,  are  two  different  things.  Could  nations  commit 
themselves  to  an3'thing  more  embarrassing  and  unsafe  than  a  legal 
obligation  to  carry  out  specifically  any  promises  whatsoever  that  mav 
be  made  by  others  in  any  contracts  for  imperial  and  local  objects '{     It 


404  sovereignty:  its  acquisition  and  loss.  [§  98. 

seems  to  iiie  not,  and  that  whoever  asserts  that  nations  have  l)y  <'oni- 
mon  consent  established  such  a  law  must  furnish  abundant  and  indis- 
putable authority,  whereas,  as  Hall  says  (sec.  '217),  this  subject  'is one 
upon  which  writers  on  international  law  are  generally  unsatisfactory.' 

'•Servitudes  or  easements,  complete]}-  granted  or  established  upon 
the  ceded  territory  for  the  benefit  of  a  foreign  nation,  have  been  sup- 
posed to  diminish  by  so  much  the  title  of  the  owner  of  the  province, 
so  that  when  he  cedes  it  he  cedes  it  subject  to  the  servitudes.  On  the 
other  hand,  it  ma}-  be  that  the  owner  of  the  province  may  acquire 
from  a  foreign  power  a  servitude  over  foreign  territory  for  the  benefit 
of  the  province,  in  such  a  way  that  it  would  become  appendent  or 
appurtenant  to  the  province  and  go  with  it  into  whosesoever  hands 
the  province  might  be  transferred.  This  seems  to  be  the  meaning  of 
Hall  (International  Law,  4th  ed.,  p.  98)  in  speaking  of  the  navigation 
and  regulation  of  a  river.  In  such  a  case  the  obligation  runs  with  the 
land,  and  may  ])e  regarded  as  other  than  a  mere  personal  obligation. 
But  this  is  no  reason  for  treating  personal  obligations,  stipulated  in 
an  executory  contract,  as  not  personal  obligations,  simply  because 
they  may  have  some  relation  to  a  particular  ceded  locality. 

"I  am  unable  to  regard  these  contracts  of  concession,  with  their 
manifold  personal  stipulations,  as  other  than  what  they  purport  to  he\ 
and  the  difference  between  them  and  servitudes,  diminishing  the  title 
of  the  owner  prior  to  the  cession  or  appurtenant  to  the  province  ceded, 
or  contracts  to  convey  public  lands,  or  what  we  conceive  of  as  a  'fran- 
chise' to  accomplish  (as  here)  a  public  duty  of  the  sovereign  of  the 
ceded  province,  or  even  a  private  (e.  g.,  eleemosynary)  work,  where 
such  franchise  exists  otherwise  than  as  but  an  integral  part  of  such  an 
executory  contract  of  the  sovereign  of  the  province  as  we  have  under 
consideration,  seems  to  me  to  be  an  obvious  one.  These  contracts  are 
contracts.  They  are  whole  things  with  interdependent  parts  and  recip- 
rocal personal  promises.  We  can  not  change  their  nature  by  calling 
them  by  other  names,  or  repeating  the  word  'local'  in  connection 
with  them.  As  such  personal  contracts,  their  promises  })ind  those 
who  made  them.  Any  obligation  of  others  in  connection  with  their 
subject-matter  is  something  different  from  the  contract  obligation, 
and  may  or  may  not  coincide  with  the  terms  of  the  specific  promises, 

"  When  we  look  into  the  present  instance,  we  find  the  large  capital 
upon  which  the  subsidy  was  calculated  has  long  since  been  invested  by 
the  railway  company.  The  provinces  of  the  Philippines  have  undoubt- 
edly received,  and  they  retain  and  will  retain,  the  chief  benefit  from 
the  railroad;  the  reveiuies  out  of  which  that  part  of  the  l)enefit  was  to 
be  paid  for  are  now  in  the  hands  of  their  new  government;  the  creditor 
was  induced  very  properly  to  look  to  those  revenues  for  that  purpose; 
and.  moreovei",  the  railroad  was  a  most  necessary  piece  of  property, 
two-thirds  of  which  was  bought,  as  it  were,  by  a  guardian  for  the  use 


§  98.]  CONTRACTS    AND    CONCESSIONS.  405 

of  his  ward,  the  price  to  be  paid  as  to  two-thirds  from  the  funds  of  the 
ward.  The  property  has  been  furnished  and  is  being  maintained,  and, 
from  its  nature,  will  be  maintained,  and  must  continue  to  benetit  the 
ward,  whose  funds  are  now  freed  from  the  guardian's  control.  From 
these  considerations  it  seems  to  me  to  follow  that,  although  the  con- 
tract as  such  has  departed  with  Spain,  there  is  a  general  equitable 
obligation  upon  the  provinces  to  make  some  fair  arrangement  with  the 
company  as  to  the  two-thirds  benefit,  and  that  they  can  not  justh'  take 
advantage  of  the  disappearance  of  Spain  to  retain  what  she  procured 
for  them,  on  the  credit  of  their  funds,  and  deny  all  liability  for  the 
price. 

"  Whether,  based  exclusively  upon  the  reception  (for  the  future,  and, 
so  far  as  geographical,  political,  and  other  differences  Avill  permit,  a 
benefit  to  continue)  of  the  benefit  of  the  railroad,  the  United  States  has 
incurred  any  liability  aifecting  one- third  or  any  such  portion  of  the 
original  indebtedness,  it  is  unnecessary  to  consider,  since  if  so  it  will 
be  for  Congress  to  deal  with  it. 

"  So  much  in  answer  to  your  question  as  to  what  obligations,  if  any, 
exist  under  said  concession,  either  against  the  revenues  of  the  Philip- 
pine Islands  or  those  of  the  United  States. 

'"You  ask,  if  an}'  such  obligations  do  exist,  what  action  can  legally  be 
taken  in  recognition  and  settlement  thereof  by  the  executive  depart- 
ment of  the  United  States  or  by  the  military  government  of  those 
islands. 

•'  It  seems  to  me  that  the  nonaction  of  Congress  has  confirmed  to  the 
President  the  responsibility  and  authority  to  continue  the  military 
government  he  has  set  up  in  the  Philippines,  as  the  only  government, 
for  the  present  and  for  an  uncertain  time,  of  a  peopled  country  whose 
future  permanent  status  is  undetermined.  (Treaty  of  Paris,  Article 
IX.;  opinion  Attorney-General,  July  '22,  1898.  concerning  Hawaii.) 
Under  such  circumstances,  I  am  of  opinion  that  the  President  is  not 
without  authority  to  settle  a  preexisting  accrued  indebtedness  of  the 
kind  herein  explained,  if  he  has  good  reason  to  believe  that  the  settle- 
ment can  not  wisely  and  justly  l)e  left  to  await  action  by  the  future 
government. 

■'  It  is  represented  in  the  papers  submitted  tome  that  the  large  defi- 
ciencies in  the  receipts  of  the  railroad  company,  occasioned  bv  the 
disturbed  state  of  affairs,  etc.,  threaten  its  bankruptcy.  If  so.  this  is 
a  fact  which  may  be  considered  in  determining  the  propriety  of  present 
action. 

'•  You  desire  to  know  what  particular  action  can  ])e  taken.  I  am  of 
opinion  that  the  President  has  authority,  if  he  thinks  it  necessary,  to 
apply  the  local  revenues  of  the  provinces  through  which  this  road 
extends  to  the  discharge  of  their  equital)le  liability,  based  upon  so 
much  of  the  concessionary  agreement  as  has  l)eeu  already  executed, 


406  sovereignty:  its  acquisition  and  loss.  [§  98. 

the  amount  of  which  liability  he  has  authority  to  determine,  in  view  of 
all  the  facts  and  circumstances.  And  what  ho  can  do  the  military 
government  can  do  with  his  consent." 

Mr.  Griggs,  Attorney-General,  to  Mr.  Root,  Sec.  of  War,  July  26,  1900,  23  Op. 
181;  affirmed  by  Knox,  At.  Gen.,  June  14,  1901,  id.  451. 

"With  reference  to  your  inquiry  as  to  what  settlement  was  finally  made  with 
the  Manila  Railway  Co.,  I  have  to  advise  you  that  the  matter  has  been 
referred  to  the  military  government  of  the  Philippine  Islands  and  will 
receive  the  personal  attention  of  Governor  Taft  on  his  return  to  Manila. 
While  Governor  Taft  was  in  Washington,  the  representatives  of  the  rail- 
way CO.  were  given  a  hearing  before  Judge  Taft  and  me,  the  outcome  of 
which  was  a  substantial  agreement  that  the  position  taken  in  my  report, 
to  which  you  refer,  is  correct,  and  that  the  matter  should  be  <lealt  with  as 
a  business  proposition  between  business  men,  rather  than  as  a  legal  prop- 
osition controlled  by  hard  and  fast  rules  of  law.  It  was  further  con- 
sidered that  inasmuch  as  the  railway  company  desired  certain  concessions 
to  enable  them  to  extend  their  railway  and  as  the  government  of  the 
Philippines  desired  such  extension  to  be  made,  the  matter  could  and  would 
be  disposed  of  in  the  negotiations  and  jiroceedings  relating  to  the  new 
concession."  (Mr.  Magoon,  Law  Officer,  Bureau  of  Insular  Affairs,  to 
Mr.  Moore,  Aug.  9,  1902,  MS. ) 

Oct.  10.  1898.  the  British  ambassador  at  Washington  inclosed  to  the 
Department  of  State  a  copy  of  the  concession  granted 

Cable  concessions,  i       ii       o         •   u    /^  '  i    i.      i-u      /^    u      o    i 

by  the  opanish  (jrovernment  to  the  Cuba  Submarine 

Telegraph  Company." 

elan.  18,  189i>,  he  addressed  to  the  Department  of  State  another  note, 
concerning  the  concessions  granted  ])v  Spain  in  the  Philippines  to  the 
Eastern  Extension  Australasia  and  China  Telegraph  Compan}-.'' 

Accompanying  this  note  there  was  the  following  pro  memoria: 

''The  undersigned  has  been  instructed  by  his  Government  to  make 
the  following  representation  in  relation  to  the  claims  of  the  Eastern 
Extension  Telegraph  Company  in  relation  to  exclusive  rights  and  to 
subsidy  luider  their  concessions  from  Spain  in  the  Philippine  Islands, 
which  the  compan}'  fear  may  not  be  fully  recognized  by  the  United 
States  Government. 

''The  obligations  contracted  by  Spain  under  those  concessions  are  of 
a  local  nature  and  it  will  not  be  contested,  as  Her  Majesty's  Govern- 
ment believe,  that  they  l)ecome  binding  on  the  United  States  Government 
on  their  taking  possession  of  the  islands  or  assuming  efl'ective  control 
of  them,  whether  under  a  formal  protectorate  or  otherwise.  On  the 
faith  of  those  concessions  the  company  has  expended  vast  sums  for  the 
benefit  of  the  Islands,  and  the  o])ligations  in  question  clearl}'  l)elong  to 
that  class  of  local  obligations  which  have  always  been  held  to  be  trans- 
ferred with  the  sovereignty  and  to  pass  with  the  territor}'. 

"Sir  J.  Pauncefote,  Brit,  amb.,  to  Mr.  Hay,  Sec.  of  State,  Oct.  10,  1898,  MS.  Notes 
from  British  Leg. 

''Sir  J.  Pauncefote,  Brit,  amb.,  to  Mr.  Hay,  Sec.  of  State,  Jan.  18,  18!(9,  ."MS.  Notes 
from  Brit.  Leg. 


§  98.]  CONTRACTS    AND    CONCESSIONS.  407 

"The  question  Is  really  governed  b}- general  principles  of  interna- 
tional law  as  to  the  effect  of  conquest,  and  therefore  Her  Majesty's  Gov- 
ernment do  not  contend  that  the  use  by  the  United  States  Government 
of  the  company's  cable,  without  availing  themselves  of  the  Government 
rights  reserved  by  the  concessions  (such  as  those  of  free  telegrams,  etc.), 
would  of  itself  render  the  concessions  binding  on  them.  But  the  use  of 
the  cable  by  the  United  States  Government  may  fairly  be  mentioned  as 
illustrating  the  local  nature  of  obligations  and  as  strengthening  the 
claim  put  forward  by  the  company,  and  which  Her  Majesty's  Cxovern- 
ment  consider  to  be  well  founded. 

"Although  Her  Majesty's  Government  trust  that  there  is  no  real 
ground  for  the  apprehensions  of  the  company,  the  undersigned  is 
desirous  to  make  this  representation  to  the  United  States  Government 
on  the  subject.'' 

The  ambassador's  note  and  the  enclosed  pro  memoria  were  commu- 
nicated to  the  Attorney-General  for  his  consideration.^' 

Feb.  1-1-,  1899,  the  ambassador,  referring  to  his  previous  communi- 
cations, expressed  the  hope  that  he  might  be  able  to  report  to  his  Gov- 
ernment "an  assurance  that  the  rights  of  the  two  companies  under 
their  respective  concessions  will  be  fully  recognized,  and  that  the  obli- 
gations of  Spain  thereunder  will  be  duU^  assumed  and  carried  out  by 
the  United  States  Government  during  their  occupation  of  the  territo- 
ries in  question."^ 

The  Attorney-General.  March  IT,  1899,  rendered  an  opinion  to  the 
effect  that,  as  to  Cuba,  the  United  States,  while  not  free  from  respon- 
sibility with  regard  to  the  affairs  of  the  island,  was  under  no  duty  to 
assume  "all  the  executor}^  and  other  contracts  which  may  belong- 
to  the  past  Government  or  its  successor,"  but  should  limit  its  action 
to  things  consistent  with  the  functions  of  a  temporary  occupant,  arrang- 
ing for  the  succession  of  the  government  of  Cuba,  whenever  it  should 
be  esta})lished.  As  to  the  concessions  in  the  Philippines,  he  found 
himself  unable  to  express  an  opinion,  owing  to  lack  of  information  as 
to  their  terms.'' 

The  Attorney-General  subsequently  advised  the  Secretary  of  War 
as  follows:  "  J  do  not  think  that  controversies  as  to  grants  and  fran- 
chises derived  from  Spain,  but  exercisable  within  the  island  of  Cuba 
or  other  islands  derived  by  the  United  States  from  Spain,  ought  to  be 
precipitated  to  a  decision  in  the  present  unsettled  conditioti  that  pre- 
vails in  those  islands.  It  is  better  to  preserve,  in  all  cases  of  doubt 
and  difHculty,  the  present  status  until  the  full  restoration  of  the  civil 

«Mr.  Hay,  Sec.  of  State,  to  Sir  J.  Pauncefote,  Brit,  amb.,  Jan.  19,  1899,  MS.  Xotes 
toBrit.  Letr-  XXIV.  424. 

''Sir  J.  Pauncefote,  Br.  ami).,  to  Mr.  Hay,  Sec.  of  State,  Feb.  14,  1899,  MS.  Xotes 
from  Brit.  1^;^. 

'(irigjis.  At.-(;en.,  March  17,  1899,  22  Op.  384;  Mr.  Hay.  Sec.  of  State,  to  Sir  J. 
Pauncefote,  Brit,  amb.,  :Marcli  27,  1899,  MS.  Xotes  to  Brit.  ].e^'.  XXIV.  482. 


408  sovereignty:  its  acquisition  and  loss.  [§  98. 

regime  and  the  establishment  of  permanent  governments,  under  which 
the  rights  of  all  can  be  duly  and  deliberateh'  determined.'- ** 

In  July,  1901,  the  rights  of  the  various  cable  companies  in  Cuba 
became  the  subject  of  a  comprehensive  report  by  the  law  officer  of  the 
Division  of  Insular  Affairs  of  the  War  Department.  In  this  report 
the  phmse  "present  status,"  employed  by  the  Attorney-General,  was 
interpreted  as  meaning  the  .'<fafui<  quo  ante  helJum;  and  orders  were 
issued  accordingly  to  the  military  governor  of  Cuba.* 

A  report  was  also  made  by  the  same  official  upon  the  claim  of  the 
Eastern  Extension  Telegraph  Company  for  the  payment  \>\  the  United 
States  of  a  subsidy,  which  Spain  had  by  the  terms  of  the  concession 
agreed  to  pay.  In  this  report,  which  quoted  from  the  report  of  the 
Transvaal  Concessions  Commission  of  April  19,  1901,  it  was  advised 
that  the  question  of  the  subsid}^  should  be  treated  "as  though  it  was 
an  original  application  made  h\  a  company  contemplating  the  con- 
struction of  a  gua^i  public  improvement.''"^ 

An  application  was  made  hj  the  Commercial  Cable  Company  to  the 
Secretary  of  War  for  permission  to  land  a  submarine  cable  in  Cuba 
and  Porto  Rico,  for  the  purpose  of  effecting  cable  communication 
between  those  islands  and  the  United  States.  B3'  an  executive  order, 
promulgated  by  the  commanding  general  of  the  United  States  forces 
in  Cuba,  all  grants  and  concessions  of  franchises  were  forbidden  to  be 
made  by  any  authority  in  the  island,  except  upon  the  approval  of  the 
Secretary  of  War;  and  by  an  act  of  Congress  of  March  3, 1899,  it  was 
directed  that  no  property,  franchises,  or  concessions  of  any  kind 
should  be  granted  by  the  United  States,  or  b}^  an}"  military  or  other 
authorit\'.  in  Cuba  during  the  occupation  of  the  island  by  the  United 
States.  The  Attorney-General  therefore  advised  that  it  would  be 
inexpedient  to  grant  the  application  to  hmd  the  cable  in  Cuba,  and 
that,  as  the  permission  to  land  it  in  Porto  Rico  seemed  to  depend  upon 
the  grant  of  a  similar  right  as  to  Cu])a,  the  same  order  should  be  made 
with  reference  to  that  part  of  the  application,  although  the  circum- 
stances under  which  the  United  States  held  and  governed  the  two 

-« Griggs,  At. -Gen.,  June  15,  1899,  22  Op.  514,  519. 

^Report  of  Mr.  Magoon,  law  officer,  Division  of  Insular  Affairs,  War  Department, 
July  9,  1901,  Magoon's  Reports,  281-302.  See,  also,  Magoon's  Reports,  511,  534, 
57l]  579. 

^  Report  of  Mr.  Magoon,  law  r)fficer,  Division  of  Insular  Affairs,  "War  Department, 
July  22,  1901,  Magoon' s  Reports,  529,  531.  It  appears,  according  to  facts  subse- 
quently di.>4close(l,  that  the  company  had  suffered  no  actual  loss  or  injury;  that  its 
business  had  so  increa.sed  that  it  was  making  the  percentage  guaranteed  by  Spain, 
and  that,  if  the  United  States  harl  been  sul>stituted  for  Spain  in  the  concession,  the 
company  would  have  been  oblige<l  to  refund  a  considerable  amount  in  excess  of  any 
claim  which  it  might  have  made,  by  rea.«on  of  the  preferential  rate  to  which  the 
United  States  would  have  been  entitled.  (Mr.  Magoon  to  Mr.  Moore,  Aug.  9, 
1902,  MS. ) 


§  ^8.]  CONTRACTS    AND    CONCESSIONS.  409 

islands  were  materially  different.  In  conclusion,  he  said:  •'  The  con- 
clusion which  I  have  arrived  at  renders  it  unnecessary  for  me  to  dis- 
cuss or  decide  the  objections  raised  on  behalf  of  the  Western  Union 
Telegraph  Company,  lessee  of  the  International  Cable  Company  of 
New  York,  which  companies  claim  an  exclusive  grant  under  a  conces- 
sion from  Spain  made  in  1867,  which  exclusive  grant,  it  is  claimed, 
has  not  3"et  expired." 

In  conformity  with  this  opinion,  the  application  of  the  Commercial 
Cable  Compan3Mvas  denied,  and  afterwards,  on  May  27.  1899,  an  order 
was  made  by  the  War  Department  directing  General  Brooke,  then 
commanding  the  American  forces  in  Cuba,  to  prevent  the  company 
from  landing  a  cable  in  the  island.  Of  this  order  the  company  asked 
for  a  reconsideration,  and  the  question  was  again  referred  to  the 
Attorney-General,  The  Attorney-General  advised  the  Secretary  of 
War  that  if  the  companj^  should,  in  disregard  of  the  instructions  of 
his  Department,  carry  out  its  proclaimed  purpose  to  land  the  cable  in 
Cuba,"  he  would  be  justified  in  using  such  force  as  might  be  neces- 
sary to  remove  and  disrupt  it.  Having  thus  pronounced  an  opinion 
upon  the  question  of  power,  the  Attorney-General  proceeded  to  dis- 
cuss the  question  of  "the  private  rights  and  public  duties"  involved 
in  the  subject.     In  this  relation  he  said: 

"This  Department  has  not  assumed  to  pass  upon  the  validity  of  the 
exclusive  right  which  the  Western  Union  Telegraph  Company  and  its 
leased  companies  claim.  They  have  formally  notified  the  authorities 
of  the  United  States  of  their  claim  under  a  concession  granted  by 
Spain,  alleged  to  continue  for  forty  years  and  not  yet  expired.  The 
mere  fact  that  the  Western  Union  Company  is  enjoying,  under  a 
grant  of  exclusive  right,  what  amounts  to  a  monopoly  is  no  reason  of 
itself  why  it  should  be  deprived  of  its  conces.sion.  .  .  .  The  laying 
and  operation  of  cables,  especially  a  quarter  of  a  century  ago,  Avere 
attended  with  great  expense  and  risk,  and  it  was  a  very  connnon 
thing  for  different  nations,  including  the  United  States,  to  grant 
exclusive  concessions  for  a  term  of  years  to  companies  that  would 
undertake  to  invest  the  necessary  capital  and  carry  on  such  enter- 
prises. .  .  .  Concessions  of  this  kind,  which  carry  with  them  exclu- 
sive rights  for  a  period  of  years,  constitute  property  of  which  the 
concessionary  can  no  more  be  deprived  arbitrarily  and  without  lawful 
reason  than  it  can  be  deprived  of  its  personal  tangible  assets.  In  a 
case  in  the  Supreme  Court  of  the  Ignited  States  (1  Wall.  852)  Mr. 
Justice  Field  said: 

"  '  The  United  States  have  desired  to  act  as  a  great  nation,  not  seek- 
ing, in  extending  their  authority  over  the  ceded  country,  to  enforce 
forfeitures,  })ut  to  afford  protection  and  security  to  all  just  rights 
which  could  have  been  clamied  from  the  government  they  superseded.' 


410  sovereignty:  its  acquisition  and  loss.  [§98. 

"If,  thoreforo.  the  Western  Union  Telegraph  Company-  has  an  exclu- 
sive grant  applicable  to  Cuba  for  cable  rights,  which  grant  has  not 
expired,  it  would  be  violative  of  all  principles  of  justice  to  destroy  its 
exclusive  right  by  granting  competing  privileges  to  another  company. 

'*  It  is  suggested  ,  .  .  that  the  grant  which  the  Western  Union 
Telegraph  Company  now  holds,  by  lease  or  assignment,  was  obtained 
by  fraud  practiced  on  the  Government  of  Spain,  and  that  for  that  rea- 
son its  grant  is  void.  Such  an  allegation  can  not  be  tried  upon  a  pro- 
ceeding like  this.  Neither  the  AVar  Department  nor  the  Department 
of  Justice  has  power  to  summon  witnesses  or  to  give  a  judgment  upon 
this  question.  It  is  essentially  a  question  for  judicial  examination  and 
decision.  .  .  .  Vested  rights  which  are  property  ought  not  to  be 
taken  from  anyone,  even  upon  charges  of  fraud,  except  by  due  pro- 
cess of  law.  ExecutiN'e  action  by  the  War  Department  applied  to 
subjects  like  this  is  not  due  process  of  law. 

••]Mr.  Mackay  [president  of  the  Commercial  Cable  Company]  further 
submits  that  "  the  tremendous  power  of  the  Government  should  not  be 
exercised  against  us.'  It  is  the  function  of  the  Government  to  pre- 
vent, so  far  as  possible,  all  infringement  of  the  vested  rights  of  others. 
Mr.  Mackay.  through  his  company,  proposes  to  set  up  a  competitive 
cable  line,  which  he  concedes  will  greatly  injure  the  business  of  the 
Western  Union  Company;  and  although, the  latter  company  produces 
a  grant  whieh.  on  its  face,  gives  it  an  exclusive  right  for  a  period  which 
has  not  expired,  he  requests  this  Government  to  stand  idly  bv  while  he 
does,  with  the  acquiescence  of  the  United  States,  the  very  thing  which 
the  Government  of  Spain,  our  predecessor  in  the  sovereignty  of  Cuba, 
solemnly  agreed  not  to  do  or  permit  to  be  done. 

"I  do  not  think  that  controversies  as  to  grants  and  franchises 
derived  from  Spain,  but  exercisable  within  the  island  of  Cuba  or 
other  islands  derived  l)y  the  United  States  from  Spain,  ought  to  be 
preeipitated  to  a  decision  in  the  present  unsettled  condition  that  pre- 
vails in  those  islands.  It  is  better  to  preserve,  in  all  cases  of  doubt 
and  difficulty,  the  present  status  until  the  full  restoration  of  the  civil 
regime  and  the  establishment  of  permanent  governments  under  which 
the  rights  of  all  can  l)e  duly  and  deliberately  determined." 

(Trigjrj.,  At.-(Teii.,  opinions  of  Marc-li  25.  1S99,  and  June  15.  1899,  22  Op.  408, 
514.     See,  also,  23  Op.  195,  451. 

For  resolutionnof  various  commercial  bodies,  calling  for  additional  cable  serv- 
ice to  Cuba,  see  S.  Doc.  289,  5H  Cong.  1  sess. 

In  lS8t>-lsiK^,  certain  concessions  were  granted  by  Sigcau,  then  ruler 

of  Pondoland,  of  railway,  mineral,  land,  and  trading 

rights    in    that   country.        In    1804.    Pondoland    was 

formally  annexed  to  the  British  dominions,  but,  while  Sigcau  gave 

notice  of   his  desire  that  the  concessions  should  be  ratified,  no  such 

condition  was  attached  to  the  annexation.     Subsequenth',  the  conces- 


§  98.]  CONTRACTS    AND    CONCESSIONS.  411 

sionaire  sued  tho  premier  of  Cape  Colony,  under  the  Crown  Liabilities 
Act,  1888,  for  a  formal  recognition  of  his  rights;  and  the  colonial 
court  having  decided  against  him,  he  appealed  to  the  Privy  Council  in 
England.  It  appeared  that  he  had  never  obtained  possession  of  the 
lands  or  exercised  his  concessionary  rights,  beyond,  perhaps,  an  effort 
to  find  graphite.  The  Lord  Chancellor  (Earl  of  Halsbury),  delivering 
the  judgment  of  their  lordships,  found  that  the  act  of  1888  did  not 
authorize  the  making  of  a  declaration  of  right  as  against  the  Crown. 
But  there  was,  he  added,  a ''more  complete  answer'"  to  any  claim 
arising  from  the  concessions,  and  this  Avas  that  the  annexation  was  an 
act  of  state — a  transaction  between  sovereigns — and  as  such  was  ''gov- 
erned ])y  other  laws  than  those  which  municipal  courts  administer." 
If  there  was  cither  an  express  or  a  well-understood  bargain  that  private 
property  in  the  ceded  territory  should  be  respected,  it  was  one  that 
could  })e  enforced  onh'  "by  sovereign  against  sovereign,  in  the  ordi- 
nary course  of  diplomatic  pressure."  In  reality  there  was  no  ])argain 
that  the  concessions  should  be  recognized;  ])ut  their  lordships  were 
not  prepared  to  differ  from  the  observation  of  the  court  below  that 
the  concessionaire  had  ''  strong  claims  to  the  favoral)le  condition  of  the 
Government  and  Parliament  of  the  country." 

Cook  V.  Sprigg  (1899),  68  L.  .T.  P.  C,  144,  (1899)  App.  Cas.  572,  81  Law  T. 
(N.  S.)  281,  following  Sec.  of  State  for  India  c.  Kainachee  Boye  Sahaba, 
13  Moore  P.  C.  22,  and  citing  Doks  r.  Sec.  of  State  for  India,  L.  K.  19  Eq. 
509,  534. 

Transvaal  Conces-  "' T.  It  is  desirable  to  state  here  the  broad  principles 
sions  Commission,  which  we  considered  applicable  to  the  problem  before  us. 

"8.  On  the  1st  September,  19o0,  Iler  late  Majesty  annexed  the 
territories  and  obliterated  the  sovereignty  of  the  South  African  Repub- 
lic. Jt  has.  therefore,  become  neces.sary  that  the  new  Government 
should  decide  in  what  relation  it  stands  to  the  concessions  granted  by 
the  Government  of  the  late  liepu])lic.  and  upon  this  point  Ave  sulnnit 
the  following  observations: 

"9.  It  is  clear  that  a  state  which  has  annexed  another  is  not  legally 
l)ound  by  any  contracts  made  by  the  state  which  has  ceased  to  exist, 
and  that  no  court  of  law  has  jurisdiction  to  enforce  such  contracts  if  the 
annexing  state  refuse  to  recognize  them.^'  But  the  modern  usage  of 
nations  has  tended  in  the  direction  of  the  acknowledgment  of  such  con- 
tracts. After  annexation,  it  has  been  said,  the  people  change  their 
allegiance,  but  their  relations  to  each  other  and  their  rights  of  property 
remain  undisturbed,'' and  property  includes  those  rights  which  lie  in 
contract.''     '  La  conquete  change  les  droits  politiques  des  habitants  du 

«Cook  V.  Sprigg.     Law  Reports  1899.     Ajjpeal  Cases,  572. 

^U.  S.  V.  Perchenian.  7  Peters,  American  Rej).  Oi)ini()n  of  Cliief  Justice  Marshall, 
p.  86,  §  7. 

^Soulard  v.  V.  S.     4  Peters,  American  Rep.,  p.  512. 


412  sovereignty:  its  acquisition  and  loss.  [§98. 

territoire,  et  transfero  au  nouveau  soiiverain  la  propriete  du  domaine 
public  de  son  cedant.  II  iven  est  pas  de  memo  de  la  propriete  prive  qui 
domeure  incomnmtable  entres  les  mains  de  ses  legitimes  possesseurs.'*^ 
Concessions  of  the  nature  of  those  which  were  the  subject  of  our  enquiry 
presented  examples  of  mixed  public  and  private  rights:  they  probably 
continue  to  exist  after  annexation  until  abrogated  by  the  annexing 
state, ^  and,  as  matter  of  practice  in  modern  times,  where  treaties  have 
been  made  on  the  cession  of  territory,  have  been  often  maintained  by 
agreement.'"  In  considering  what  the  attitude  of  a  conqueror  should 
be  towards  such  concessions  we  are  unable  to  perceive  any  sound  dis- 
tinction between  a  case  where  a  state  acquires  part  of  another  by 
cession,  and  a  case  where  it  acquires  the  whole  by  annexation.  The 
opinion  that  in  general  private  rights  should  be  respected  b}'  the  con- 
queror, though  illustrated  and  supported  l)y  jurists  by  analogies  drawn 
from  the  Roman  law  of  inheritance,  is  based  on  the  principle,  which  is 
one  of  ethics  rather  than  of  law,  that  the  area  of  wai*  and  of  suffering 
should  be,  so  far  as  possible,  narrowly  conlined,  and  that  non-combatants 
should  not,  where  it  is  avoidable,  be  disturbed  in  their  business;  and 
this  principle  is  at  least  as  applicable  to  a  case  where  all  as  where  some 
of  the  provinces  of  a  state  are  annexed. 

•'10.  Though  we  dou])t  whether  the  duties  of  an  annexing  State 
towards  those  claiming  under  concession  or  contracts  granted  or  made 
by  the  annexed  State  have  })een  defined  with  such  precision  in  author- 
itative statement,  or  acted  upon  with  such  uniformity  in  civilized 
practice  as  to  w^arrant  their  being  termed  rules  of  international  law, 
we  are  convinced  that  the  best  modern  opinion  favors  the  view  that, 
as  a  general  rule,  the  obligations  of  the  annexed  State  towards  private 
persons  should  be  respected.  Manifestly  the  general  rule  must  be 
subject  to  (lualitication,  i\  r/.,  an  insolvent  State  could  not  by  aggi'es- 
sion,  which  practically  left  to  a  solvent  State  no  other  course  but  to 
annex  it,  convert  its  worthless  into  valualde  obligations;  again,  an 
annexing  State  would  be  justified  in  refusing  to  recognize  obligations 
incurred  l)y  the  annexed  State  for  the  immediate  purposes  of  war 
against  itself;  and  pro})a))ly  no  State  would  acknowledge  private 
rights,  the  exist(Mice  of  which  caused,  or  contrilmted  to  cause,  the  war 
which  resulted  in  annexation. 

'"11.  Subject  to  these  reservations  His  Majesty's  Government  in 
dealing  with  the  concessions  in  (juestion  will  prol>al)h'  l)e  willing  to 
adopt  the  principle  which,  in  the  case  of  the  annexation  of  Hanover 
})y  Prussia  (the  modcn'n  case  most  nearly  corresponding  with  that 
under  consideration),  was  proclaimed  ])y  th(»  conquerors  in  the  follow- 

«Calvo.     Le  Droit  International,  2478.     Halleck.     Interna.  Law,  j).  881. 

''PruHsia  and  Netherlands,  1816.  Peace  of  Zurieh,  18.59.  France  and  Sardinia,  1860. 
Peace  of  Vienna,  1864.  Cession  of  Venetia,  1866.  Germany  and  France,  1871. 
Great  Britain  and  Germany,  1890. 

'  Huher,  Staaten  Succession,  p.  149.     Martens  Nouveau  Kecueil. 


S  98.]  CONTRACTS    AND    CONCESSIONS.  413 

ing  terms:  'We  will  protect  eveiyone  in  the  possession  and  enjoyment 
of  his  duly  acquired  rights.'     (Royal  Prussian  Patent,  3rd  Oct.,  1866.) 

■'12.  The  acceptance  of  this  principle  clearly  renders  it  necessary 
that  the  annexing  government  should  in  each  case  examine  whether 
the  rights  which  it  is  asked  to  recognize  have,  in  fact,  been  dul}^ 
acquired.  It  is  an  obvious  corollary  that  the  rights  in  question  must 
be  valid  not  only  by  reason  of  due  acquisition  in  the  first  instance,  but 
b}^  reason  of  their  conditions  having  been  subsequently  duly  performed. 

"13.  Applying  these  principles  more  in  detail  to  the  case  of  the 
concessions  with  which  we  have  had  to  deal,  we  have  come  to  the 
conclusion  that  the  cancellation  of  a  con(;e8sion  may  properh'  be  advised 
when 

"  (i)  The  grant  or  the  concession  was  not  within  the  legal  powers 
of  the  late  government;  or, 

"(ii)   Was  in  breach  of  a  treaty  with  the  annexing  State;  or, 

"  (iii)  When  the  person  seeking  to  maintain  the  concession  acquired 
it  unlawfully  or  by  fraud;  or 

"(iv)  Has  failed  to  fulfill  its  essential  conditions  without  lawful 
excuse. 

"In  any  case,  falling  within  these  categories,  where  there  has  either 
been  no  'duly  acquired'  right,  or  there  has  been  a  nonfulfillment  of 
essential  conditions  by  the  concessionaire,  cancellation  or  modification 
without  compensation  appears  to  us,  in  the  absence  of  special  circum- 
stances, to  be  justifiable. 

"'ll:.  We  further  think  that  the  new  government  is  justified  in 
cancelling  or  modifying  a  concession  when 

"(v)  The  maintenance  of  the  concession  is  injurious  to  the  public 
interest. 

"15.  In  this  last  case,  however,  the  question  of  compensation 
arises,  inasmuch  as  it  would  be  inequitable  that  a  concessionaire  should 
lose  without  compensation  a  right  duly  acquired,  and  whose  conditions 
he  had  dul}^  fulfilled,  because  the  new  government  difi'ered  from  the 
old  in  its  view  as  to  what  was,  or  was  not,  injurious  to  public  interest 
even  though  the  opinion  of  the  new  govermuent  were  obviously  the 
true  one.  We  do  not  consider  the  actual  amount  of  compensation  pay- 
able as  a  matter  within  the  scope  of  our  inquiry,  but  we  submit  the  fol- 
lowing observation  as  to  the  principles  relevant  to  the  question: 

"In  determining  the  amount  of  compensation  in  respect  of  losses 
sustained  ))y  the  owner  of  a  concession  cancelled  or  modified  as  injuri- 
ous to  the  pu))lic  interest,  regard  may  justly  be  paid  to  the  question 
whether  the  owner,  at  the  time  when  he  received  or  acquired  the  con- 
cession, knew,  or  reasonably  ought  to  have  known,  that  it  was  preca- 
rious. A  concession  may  be  precarious  for.man\^  reasons,  but  it 
certainly  is  so  if  the  subject-matter  of  it  is  closely  related  to  large 
and  changing  public  interests.  In  such  matters,  no  reasonable  man 
can  anticipate  that  a  government  can  indefinitely  fetter  the  legislation 


414  sovereignty:  its  acquisition   and  loss.  [§99. 

of  the  future:  and  indeed,  in  countries  such  as  Great  Britain,  where 
opinion  is  tender  to  vested  interests,  modification  without  compensa- 
tion has  l)een  made  in  the  statutory  powers  and  privileges  of  under- 
takings incorporated  under  Parliamentary'  powers  and  relating  to  gas, 
water,  electric  light,  public  transport,  and  other  subjects  with  which 
the  well-l)eing  of  the  community  at  large  is  closely  bound  up. 

••16.  We  submit  also  that  no  concessionaire  can  rightly  claim  to  be 
placed  in  a  better  position  under  the  new  than  under  the  old  govern- 
ment, and  therefore  in  assessing  compensation  to  any  owner  of  a  con- 
cession in  respect  of  bis  loss  the  value  of  his  interest  should  be  taken 
as  it  was  before  the  war  which  has  resulted  in  annexation,  and  before 
the  superior  credit  and  stability  of  the  annexing  State  have  appreciated 
his  propert3\ 

■'17.  On  the  other  hand,  when  pul)lic  interest  recpiires  the  modifi- 
cation or  cancellation  of  a  justly  ac(|uired  concession,  due  consideration 
ought  properly  to  be  shoAvn  in  cases  where  new,  and  under  the  cir- 
cumstances, hazardous  enterprises  have  been  pioneered  into  stability 
in  an  unsettled  and  undeveloped  country  where  profit  Avas  uncertain, 
and  total  loss  a  i)ossible  contingency.** 

Report  of  the  Hon.  Alfred  Lyttelton,  K.  C,  M.  P.;  A.  M.  Asliinore,  C.  M.  (;., 
and  R.  Kelsey  Loveday,  esq.,  Transvaal  Concession  Commission,  April 
19,  1901,  Blue  Book,  South  Africa,  June,  1901  ^Cd.  623),  6-8. 

8.  Ox  Private  Rk;hts. 
§  99. 

By  the  treaty  V)v  which  Louisiana  was  ceded  to  the  I'nited  States, 
it  was  provided  (Art.  III.)  that  the  inhabitants  should  l)e  "'maintained 
and  protected  in  the  free  enjoyment  of  their  liberty,  propert}',  and 
the  religion  which  they  profess."* 

Stipulations  for  the  protection  of  rights  of  property  may  also  be 
found  in  othm-  treaties  by  which  the  United  States  has  acquired  title 
to  territory.  They  are  held  by  the  courts  to  l)e  merely  declaratory  of 
the  law  of  nations. 

As  to  property  of  the  Orthodox  Greek  Church  in  Alaska,  under  Art. 
II.  of  the  treaty  of  cession,  see  ^Ir.  Day,  Assist.  Sec.  of  State,  to  the 
Sec.  of  the  Intei'ior,  Sept.  :iT,  1897,  '2'21  MS.  Dom.  Let.  205,  enclosing 
copy  of  a  letter  of  Bishop  Nicolas  to  the  Russian  minister  at  Washing- 
ton. Aug.  It.l8i»7.  left  at  the  Department  of  State  Sept.  23, 1897:  Mr. 
Sherman,  Sec.  of  State,  to  the  Sec.  of  the  Interior,  Jan.  21,  1898, 
enclosing  copy  of  a  note  from  the  Russian  charge  of  Jan.  15,  1898. 

''If.  also,  a  conipiered  country  is  <<dcd^  the  old  ])ossessors  are  enti- 
tled to  their  estates:  and  when  any  country  is  conquered 
Judicial  decisions.  ,,  -     i         ■        i       i-    .i     ■"       -.    i.  i     2 

the  possessors  are  not  deprived  ot  their  estates,   but 

onh'  change  their  masters.*' 

Wilcox  V.  Henry  (1782),  supreme  court  of  I'eunsylvauia,  1  Dallas,  69. 


§  99.]  PRIVATE    RIGHTS.  415 

"In  the  treaty  by  which  Louisiana  was  acquired,  the  United  States 
stipulated  that  the  inhabitants  of  the  ceded  territory  should  be  pro- 
tected in  the  free  enjoyment  of  their  property.  The  United  States,  as 
a  just  nation,  regard  this  stipulation  as  the  avowal  of  a  principle  which 
would  have  been  held  equally  sacred,  though  it  had  not  been  inserted 
in  the  contract. 

"The  term  'propert}','  as  applied  to  lands,  comprehend?,  every  spe- 
cies of  title  inchoate  or  complete.  It  is  supposed  to  embrace  those 
rights  which  lie  in  contract;  those  which  are  executory;  as  well  as 
those  which  are  executed.  In  this  respect  the  relation  of  the  inhabit- 
ants to  their  government  is  not  changed.  The  new  government  takes 
the  place  of  that  which  has  passed  away." 

Marshall,  C.  J.,  United  States  v.  Soulard  (1880),  4  Pet.  .511,  quoted  in  Smith  r. 
United  States  (18.36),  10  Pet.  326;  S.  P.,  United  States  r.  Kingsley,  12  Pet. 
476.  This  rale,  however,  does  not  extend  to  mere  inchoate  rights  which 
are  of  imperfect  obligation  and  affect  only  the  conscience  of  the  new  sov- 
ereign. ( Dent  r.  Emmeger,  14  Wall.  308. )  A  mere  change  of  sovereignty 
produces  no  change  in  the  state  of  rights  existing  in  the  soil.  (Mutual 
A.SS.  Society  r.  Watts'  Ex'r  ( 1816),  1  Wheaton,  279,  relating  to  a  lien  on  real 
property  in  a  part  of  the  District  of  ColumVjia  after  its  cession  to  the  United 
States. ) 

It  was  held  that  grants  of  land  made  by  the  Spanish  authorities  in  Louisiana 
after  its  cession  to  France  and  before  its  cession  by  the  latter  to  the  United 
States,  were  void  ( United  States  r.  Reynes,  9  How.  127;  Davis  r.  Concordia, 
id.  280);  and  that  grants  made  by  the  French  authorities  in  Louisiana 
after  the  treaty  of  Fontainebleau,  were  void  unless  continued  possession 
laid  a  foundation  for  presuming  a  confirmation  by  the  authorities  of  Spain. 
( United  States  r.  Pillerin,  13  How.  9. ) 

The  8th  article  of  the  treaty  of  cession  of  the  Floridas  to  the 
United  States  providing,  according  to  the  English  text,  that  grant 
of  land  made  in  the  ceded  territory  by  Spain  prior  to  Jan.  24,  1818, 
"shall  be  ratified  and  affirmed,''  it  was  at  first  held  that  this  was  the 
"language  of  contract."  and  that,  till  Congress  had  legislated  on  the 
subject,  the  stipulations  of  the  treaty  in  this  respect  were  inoperative. 
Subsequently  this  view  of  the  article  was  overruled,  on  the  strength 
of  the  Spanish  text,  which  read  that  the  grants  should  ^  remain  ratified 
and  confirmed" — "thus  conforming."  declared  the  court,  '" exactly  to 
the  universally  received  doctrine  of  the  law  of  nations."'  There  could 
be  no  motive  for  the  interposition  of  the  government  "in  order  to 
give  validity  to  titles  which,  according  to  the  usages  of  the  civilized 
world,  were  already  valid." 

United  States  r.  Percheman  ( 1833),  7  Pet.  51,  (overruling  on  tliis  point  Foster  »•. 
Xeilson  (1829),  2  Pet.  2-53.  See,  also,  United  States  '•.  Arredondo,  6  Pet. 
691;  United  States  >:  Clarke,  8  Pet.  436;  United  States  /■.  Clarke,  16  Pet. 
231,  232. 

The  protection  of  the  treaty  extended  to  conditional  as  well  as  absolute  con- 
cessions.     (, United  States  r.  Clarke,  9  Pet.  168;  Mitchel  v.  United  States, 


416  sovereignty:  its  acquisition  and  loss.  [S  99. 

id.  734. )  But  if  the  condition  without  good  reason  remained  uuperfonned, 
no  title  ve.sted.  (United  State.*  *.  Perchenian,  7  Pet.  51;  United  State.s  »•. 
Clarke,  9  Pet.  168;  United  States  '■.  Mills,  12  Pet.  21o. ) 
A  Spanish  grant  made  after  Deo.  2,  1820,  was  void.  (2  Op.  191,  Wirt,  1829. 
See,  also,  United  States  r.  Clarke,  8  Pet.  4.36. )  So  were  unlocated  and 
indefinite  grants.  (O'Hara  r.  United  States,  15  Pet.  275;  United  States  r. 
Delespine,  id.  319;  United  States  '•.  Miranda,  16  id.  153.)  An  efpiitable 
Spanish  title,  not  confirmed  by  the  United  States,  could  not  prevail  against 
a  legal  title  acquired  from  the  United  States.  ( United  States  r.  King,  3 
How.  773.) 

The  authorities  of  Spain  had  power  to  make  grants  of  the  public 
domain  in  Florida  in  accordance  with  their  own  ideas  of  the  merits  of 
the  grantee,  and  the  court  can  only  consider  the  questions  whether  a 
grant  was  made  and  what  was  its  legal  effect. 

Unite<l  States  r.  Hanson,  16  Pet.  196;  I'nited  States.  /.  Acosta,  1  How.  24. 

Grants  of  laud  in  Florida  made  bv  the  King  of  Spain  to  the  Roman 
Catholic  Church  before  the  cession  of  that  territor}'  to  the  United 
States  were  valid,  and  were  confirmed  bv  the  treaty  of  cession. 

Wirt,  At. -Gen.  i  1822),  1  Op.  563. 

"It  is  very  unusal.  even  in  ca.ses  of  conquest,  for  the  conqueror  to 
do  more  than  to  displace  the  sovereign  and  assume  dominion  over  the 
country.  The  modern  usage  of  nations,  which  has  become  law, 
would  be  violated;  that  sen.se  of  justice  and  of  right  which  is  acklow- 
edged  and  felt  by  the  whole  civilized  world  would  be  outraged  if 
private  property  should  be  generally  confiscated,  and  private  rights 
annulled.  The  people  change  their  allegiance;  their  relation  to  their 
ancient  sovereign  is  dissolved;  but  their  relations  to  each  other,  and 
their  rights  of  property  remain  undisturbed. 

•■  This  article  [Art.  VIII.  of  the  treaty  of  1819  Mith  Spain,  ceding 
the  Florida.'^]  is  apparently  introduced  on  the  part  of  Spain,  and  nuisi 
be  intended  to  stipulate  expressly  for  that  security  to  private  property 
which  the  laws  and  usages  of  nations  would,  without  express  stipula- 
tion, have  conferred.  .  .  .  Without  it  the  titles  of  individuals 
remain  as  valid  under  the  new  government  as  they  would  under  the 
old;  and  those  titles,  so  far  at  least  as  they  were  consummate,  might 
be  as.serted  in  the  courts  of  the  United  States,  independently  of  this 
article.*" 

Marshall,  C.  .1..  United  States  '.  Percheman  (1833),  7  Pet.  51,  86,  87. 

Substantially  tlie  same  language  is  used  by  Marshall,  C.  J.,  in  Dela.«sus  r. 
United  States  {IHlio),  9  Pet.  117,  1.33,  where  he  .says:  '"No  principle  is 
better  settled  in  this  country  tlian  that  an  inchoate  title  to  lands  is  prop- 
erty."    S.  P.,  Mitchell  '■.  United  States  (1835),  9  Pet.  711. 

"A  grant  or  a  concession  made  by  that  officer  who  is  by  law  author- 
ized to  make  it,  carries  with  it  prima  facie  evidence  that  it  is  within 


§  99.]  PRIVATE    RIGHTS.  417 

his  power.  .  .  .  lie  who  alleges  that  an  officer  intrusted  with  an 
important  d-iity  has  violated  his  instructions,  must  show  it.  This 
subject  was  fully  discussed  in  the  United  States  v.  Arredondo,  6  Peters, 
691;  Percheman  t:.  United  States,  7  Peters,  51;  United  States  i'.  Clarke, 
8  Peters,  436.'^ 

Marshall,  C.  J.,  Delassus  r.  United  States  (1835),  9  Pet.  134. 

The  act  of  Congress  of  June  22,  1860,  had  for  its  object  the  final  adjustment 
of  land  claims  and  the  validation  of  grants  of  land  made  by  the  8{>anish 
Government  to  bona  fide  grantees  within  the  disputed  territory  while  that 
Government  remained  in  possession  of  it.  (United  States  r.  Lvnde,  11 
Wall.  6.32. ) 

Where  grants  of  land  in  Florida  were  in  fact  complete  i)rior  to  the  ratification 
of  the  treaty  of  cession,  Congress  might  require  their  genuineness  and 
extent  to  l)e  established  by  proper  proceedings  before  they  could  be  held 
valid.     (Florida  v.  Furman  (1901),  180  U.  S.  402. ) 

A  grant  of  lands  in  California,  while  it  was  a  Mexican  province, 
made  by  the  chief  of  an  administration,  during  an  intestine  war,  when 
he  was  in  flight  from  the  seat  of  government,  and  his  cause,  soon 
afterwards  completely  overthrown,  in  extremit}  ,  can  not  be  sustained, 
its  validit}^  never  having  been  acknowledged  by  the  grantor's 'suc- 
cessors, and  no  sanction  ever  having  been  given  it  by  the  United  States. 

United  States  ;•.  Sutter,  21  Howard,  170;  United  States  r.  Rose,  23  id.  262. 

The  fact  that  Mexico  declared  through  her  commissioners  who  nego- 
tiated the  treaty  of  Guadalupe  Hidalgo  that  no  grants  of  land  were 
issued  by  the  Mexican  governors  of  California  after  May  13,  1846, 
does  not  affect  grants  actually  made  after  that  date  by  those  governors, 
while  their  authority  and  jurisdiction  continued. 

United  States  c.  Yorba,  1  Wallace,  412.  See,  also.  More  v.  Steinbacli,  127 
U.  S.  70. 

The  treaty  of  Guadalupe  Hidalgo,  between  the  United  States  and 
Mexico,  did  not  divest  the  pueblo,  existing  at  the  site  of  the  city  of 
San  Francisco,  of  any  rights  of  propert}',  or  alter  the  character  of  the 
interests  it  may  have  held  in  an}'  lands  under  the  former  government. 
It  makes  no  distinction  in  the  protection  it  provides  between  the 
property  of  individuals  and  that  held  hy  towns  under  the  Mexican 
Government. 

Townsend  r.  (iretley,  5  Wallace,  326. 

''The  United  States  have  never  sought  hy  their  legislation  to  evade 
the  obligation  devolved  upon  them  by  the  treaty  of  Guadalupe  Hidalgo 
to  protect  the  rights  of  property  of  the  inhabitants  of  the  ceded  terri- 
tory, or  to  discharge  it  in  a  narrow  and  iHit)eral  manner.  They  have 
directed  their  tribunals,  in  passing  upon  the  rights  of  the  inhabitants, 
to  be  governed  by  the  stipulations  of  the  treaty,  the  law  of  nations, 

H.  Doc.  551 27 


418  SOYEREIGlSrTY :    ITS    ACQUISITION    AND    LOSS.  [§  99, 

the  laws,  usages,  and  customs  of  the  former  government,  the  prin- 
ciples of  equity,  and  the  decisions  of  the  Supreme  Court  so  far  as 
the}^  are  applicable.  They  have  not  desired  the  tribunals  to  conduct 
their  investigations  as  if  the  rights  of  the  inhabitants  to  the  property 
which  they  claim  depended  upon  the  nicest  obsei'vance  of  every  legal 
formality.  They  have  desired  to  act  as  a  great  nation,  not  seeking, 
in  extending  their  authority  over  the  ceded  country,  to  enforce  for- 
feitures, but  to  alfoi'd  protection  and  security  to  all  just  rights  which 
could  have  been  claimed  from  the  government  they  superseded.'' 

Field,  J.,  United  States  v.  Auguisola  (1863),  1  Wall.  852.  S.  P.,  United  States  r. 
Moreno  (1S63),  1  Wall.  400;  Strother  v.  Lucas,  12  Pet.  412;  United  States 
r.  Roselius,  15  How.  36;  Lieten.sdorfer  r.  Webb,  20  How.  176;  United 
States  /•.  Peralta,  3  Wall.  434;  Beley  r.  Naphtaly,  169  U.  S.  353;  United 
States  r.  Olvera,  154  U.  S.  538.  As  to  the  three  kinds  of  Mexican  grants, 
see  United  States  r.  McLaughlin,  127  U.  S.  428,  448.  See  also  175  U.  S. 
76,  248,  500,  509,  552. 

The  division  of  a  country  and  the  maintenance  of  independent  gov- 
ernments over  its  different  parts  do  not  of  themselves  divest  the  rights 
which  the  citizens  of  either  have  to  property  situate  within  the  terri- 
tory^ of  the  other.  A  Mexican  was  not,  b}'  the  revolution  which 
resulted  in  the  independence  of  Texas,  or  b}'  her  constitution  of  March 
IT.  183<).  or  her  laws  sul)sequently  enacted,  divested  of  his  title  to 
lands  in  that  State,  l)ut  he  retained  the  right  to  alienate  and  transmit 
them  to  his  heirs,  and  the  latter  are  entitled  to  sue  for  and  recover 
them, 

Airhart  r.  ^lassieu,  98  U.  S.  491;  S.  P.,  Jones  /■.  McMasters,  20  How.  8. 

A  suit  was  brought  l)y  the  heirs  of  the  Chevalier  de  liepentigiu"  to 
recoN  er  certain  lands  at  the  Sault  de  Ste.  Marie,  which  were  granted 
to  him  ])y  the  French  Government  in  1751,  It  appeared  that,  after 
the  grant  was  made,  he  took  possession  of  the  land,  but  that  subse- 
quently, in  1754.  after  the  war  ])etween  France  and  Great  Britain 
broke  out,  ))eing  called  into  the  active  service  of  France,  he  left  it. 
He  never  returned  to  it.  On  the  contrary,  he  continued  in  the  service 
of  France  and  l)ocame  a  major-general  in  the  arnn*  and  governor  of 
Senegal,  By  the  treaty  of  17<)3,  which  surrendered  Canada  to  Great 
Britain,  it  was  pr<jvided  that  French  subjects  might  retire  and  sell 
their  estates,  provided  it  be  to  British  subjects,  and  transport  their 
effects  as  well  as  their  persons  within  a  certain  time.  The  court,  Mr, 
Justice  Nelson  deli\  ering  the  opinion,  said  (1)  that  the  rule  as  to  pro- 
tection of  private  rights  in  case  of  conquest  was  limited  to  the  inhabit- 
ants who  remainc^d  and  became  subjects  of  the  victorious  sovereign; 
and  {'2)  that  the  con(|ueror  had  the  right  to  forbid  the  departure  of 
his  new  subjects  and  exercise  his  sovereignty  over  them.  "Now,  in 
view  of  these  principles.''  said  the  court,  '"  it  is  apparent  that  Repen- 
tigny,  having  refused  to  continue  an    inhabitant  of  Canada  and  to 


§  99.]  PRIVATE    TMaHTS.  419 

become  a  su})j('ct  of  Great  Britain.  l)ut.  on  the  contrary,  elected  to 
adhere  in  his  allegiance  to  his  native  sovereitrii,  and  to  continue  in  his 
service,  deprived  himself  of  any  protection  or  security  of  his  property, 
except  so  far  as  it  was  secured  bv  the  treaty.  That  protection  .  .  . 
was  limited  to  the  privilege  of  sale  or  sales  to  British  sul»jects,  and  to 
carry  with  him  his  effects,  at  anv  time  within  eighteen  months  from 
its  ratification.  Whatever  propert}"  was  left  luisold  was  abandoned  to 
the  conqueror." 

r.  S.  /•.  KepentiKiiy  (1866),   5  Wall.   211.     Cited  in  Hall,   Int.   Law,  4th  ed., 

593,  594. 
Grants  of  contested  territory  made  Jlagrunic  l>dlo  ]>y  the  pai'ty  who  fails  can 

derive  validity  only  from  treaty  stipulations.     (Harcourt   '•.  Gaillard,   12 

Wheat.  523. ) 

*■  Jt  is  no  doubt  the  received  doctrine  that,  in  cases  of  ceded  or  con- 
quered territory,  the  rights  of  private  property  in  lands  are  respected. 
Grants  made  by  the  former  government,  being  rightful  when  made, 
are  not  usually  disturlied.  ...  It  is  true  that  the  property  rights 
of  the  people,  in  tho.se  cases,  were  protected  by  stipulations  in  the 
treaties  of  cession,  as  is  usual  in  such  treaties;  but  the  court  took 
broader  ground,  and  held,  as  a  general  principle  of  international  law, 
that  a  mere  cession  of  territory  only  operates  upon  the  sovereignty 
and  jurisdiction,  including  the  right  to  the  public  domain,  and  not 
upon  the  private  property  of  individuals  which  had  been  segregated 
from  the  public  domain  before  the  cession.  This  principle  is  asserted 
in  the  cases  of  United  Statex  v.  Arredondo^  6  Pet.  (>91;  T  rated  States 
V.  rrrchemau,  7  Pet.  51,  86-89;  DeJa.Ksus  v.  (mited  States,  9  Pet.  117; 
Strotherv.  LwMH,  12  Pet.  410,428;  Boex.  Eslara,  9  How.  421;  Janes 
V.  2L2fasters.  20  How.  8,  17;  and  LeUensdorferx.  WeU,  20  How.  176." 

Coffee  /■.  Groover  (1887),  123  U.  8.  1,  9-10. 

8.  P.,  United  8tates  r.  Chaves  (1895),  159  U.  8.  452,  457,  citing  United  8tates 
c.  Percheman,  7  Pet.  51,  86. 

By  an  act  of  March  8,  1891,  26  Stat.  854,  Congress  created  a  court 
of  Private  Land  Claims  for  the  settlement  of  land  titles  in  New  Mexico 
and  Arizona.  This  act  prohibited  the  allowance  of  an}' claim  *' that 
shall  not  appear  to  be  upon  a  title  lawfully  and  regulai'ly  derived  from 
the  Goveriuiient  of  Spain  or  Mexico,  or  from  any  of  the  States  oi  the 
Repul)lic  of  Mexico  having  lawful  authority  to  make  grants  of  land." 
Undei-  this  provision  the  court  nuist  be  satisfied,  not  merely  of  the 
regularity  in  th(»  form  of  the  proceedings,  but  also  of  the  authority  of 
the  official  making  the  grant,  or,  if  the  grant  was  unwarranted,  of  its 
having  l)e(Mi  afterwards  lawfully  ratified. 

Hayes  r.  I'nited  8tates  (1898),  170  U.  8.  637,  comparing  tlie  act  of  March  3, 
1891,  with  the  legi.«lation  in  Arredondo's  case,  6  Pet.  69],  and  I'eralta's 
case,  19  How.  343;  P>erreyesa  >:  Unite<l  States,  154  U.  S.  623;  United  States 
r.  Coe,  170  U.  8.  681;  Ainsa  v.  United  States,  161  U.  S.  208;  Ely's  Adm. 


■120  sovereignty:  its  acquisition  and  loss.  [§99. 

r.  United  States?,  171  U.  8.  220,  224;  Faxon  r.  United  States,  171  U.  S. 
244,  249;  Bergere  r.  United  States,  168  U.  S.  66;  Chaves  v.  United  States, 
168  U.  S.  177;  I'nited  States  r.  Ortiz  (1900),  176  U.  S.  422;  United  States 
V.  p:ider,  177  U.  S.  104;  Whitney  r.  United  States  (1901),  181  U.  S.  104; 
Cessna  r.  Unite<l  States,  169  T'.  S.  165. 

An  im-hoate  claim  is  not  within  tlie  art  of  March  3,  1891,  but  the  duty  of  pro- 
tecting such  imperfect  rights  of  property  rests  upon  the  poHtical  depart- 
ment of  the  Government.  (United  States  v.  Santa  Fe,  165  U.  S.  675; 
Ignited  States  r.  Sandoval,  167  U.  S.  278;  Zia,  Pueblo  of  v.  United  States, 
168  U.  S.  198.) 

Possession  of  land,  after  the  treaty  of  Guadahipe  Hidalgo,  though  exclusive 
and  notorious,  can  not  contribute  to  create  a  title;  but  proof  of  adverse, 
exclusive,  and  uninterrupted  possession,  ]>efore  the  treaty,  may  warrant 
a  presumption  of  a  grant.  (Crespin  v.  United  States,  168  U.  S.  208;  United 
States  r.  Chaves,  159  U.  S.  452. ) 

As  to  the  powers  of  the  ayuntamiento  of  El  Paso  to  make  a  grant,  see  Cessna  v. 
United  States,  169  U.  S.  165. 

The  significance  of  an  empresario  grant  is  discussed  in  Interstate  Land  Co.  v. 
Maxwell  Land  Grant  Co.,  139  U.  S.  569. 

In  a  grant  of  certain  lands  in  1844  to  the  pueblo  and  natives  of  Tumacacori,  it 
was  declared  that  the  lands  were  in  no  case  to  be  alienated,  "smce  they 
are  all  to  be  considered  as  belonging  to  the  Republic  and  community  of 
natives  alone,  for  their  proper  use,  as  well  for  sowing  purposes  as  for  stock 
raising  and  the  increased  prosperity  of  the  same."  "  This  was  in  accord- 
ance with  the  general  rule  that  the  missionaries  and  Indians  only  acquired 
a  usufruct  or  occupancy  at  the  will  of  the  sovereign.  Unlte'I  States  v. 
Cervantes,  18  How.  553."    (Faxon  c.  United  States,  171  U.  S.  244,  258-259.) 

"It  was  undoubtedly  the  dtity  of  Congress,  as  it  was  its  purpose  in 
the  various  statutory  enactments  it  has  made  in  respect  to  Mexican 
titles,  to  recognize  and  establish  every  title  and  right  which  before  the 
cession  Mexico  recognized  as  good  and  valid.  In  other  words,  in 
harmon}'  with  the  rules  of  international  law,  as  well  as  with  the  terms 
of  the  treaties  of  cession,  the  change  of  sovereignty  should  work  no 
change  in  respect  to  rights  and  titles;  that  which  was  good  before 
should  be  good  after;  that  which  the  law  woidd  enforce  before  should 
be  enforcible  after  the  cession.""  The  duty  of  determining  what  titles 
were  good  and  valid  before  the  cession  has  as  a  rule  been  committed 
by  Congress  to  some  judicial  tribimal. 

Ely's  Adm.  v.  United  States  (1898),  171  U.  S.  220,  223.  At  pp.  233-234  of 
this  case  the  court  said: 

"While  of  course  time  does  not  run  against  the  government,  and  no  prescrip- 
tion, perhaps,  may  be  affirmed  in  favor  of  the  validity  of  this  grant,  yet 
the  iilaction  of  the  government  during  these  many  years  is  very  per- 
suasive, not  merely  that  it  considered  that  the  intendant  had  the  power 
to  make  the  sale,  but  that  in  fact  he  did  have  such  i>ower." 

While  the  United  States  was  bound  to  respect  the  rights  of  private 
property  in  the  territory  ceded  ))y  the  treaty  of  Guadaloupe  Hidalgo, 
yet  it  had  the  right  to  prescri)>e  reasonal)h^  means  for  determining  the 
vaHdity  of  titles  to  land  within  the  ceded  territory,  and  to  require  all 


§  99.]  PEIVATE    EIGHTS.  421 

persons  having  such  claims  to  present  them  for  recognition,  and  to 
treat  as  abandoned  all  claims  not  thus  presented. 
Barker  v.  Harvey  (1901),  181  U.  S.  481. 

Injunction  will  lie  to  restrain  intrusion  on  lands  granted  by  Russia 
in  fee  simple  prior  to  the  treaty  of  cession  of  18H7,  by  which  the 
United  States  agreed  to  protect  the  inhabitants  in  their  rights  of 
propert)^ 

Callsen  r.  Hope,  75  Fed.  Rep.  758. 

"But  the  decision  now  made  rests  on  an  alleged  rule  of  international 
law^  which,  assumed,  as  it  now  is,  by  the  Government 
pi  ions.  ^^.  Qj^uj^  becomes  a  proper  matter  of  discussion  between 
ourselves  and  that  Government.  It  is  asserted  by  the  Government  of 
Chili  (for,  in  international  relations,  and  the  maintenance  of  interna- 
tional duties,  the  action  of  the  judiciary  in  Chili  is  to  be  treated,  when 
assumed  b}-  the  Government,  as  the  act  of  the  Government)  that  a 
sovereign,  when  occupying  a  conquered  territory,  has,  by  international 
law,  the  right  to  test  titles  acquired  under  his  predecessor  by  applying 
to  them  his  own  municipal  law,  and  not  the  municipal  law  of  his  pred- 
ecessor under  which  they  vested.  The  true  principle,  however,  is 
expressed  in  the  following  passage  cited  in  the  memorialist's  brief: 

"  'But  the  right  of  conquest  cannot  affect  the  property-  of  private 
persons;  war  being  only  a  relation  of  state  to  state,  it  follows  that  one 
of  the  belligerents  who  makes  conquests  in  the  territory  of  the  other 
cannot  acquire  more  rights  than  the  one  for  whom  he  is  substituted; 
and  that  thus,  as  the  invaded  or  conquered  state  did  not  possess  an}' 
right  over  private  property,  so  also  the  invader  or  conquei'or  cannot 
legitimately  exercise  any  right  over  that  property.  Such  is  to-day  the 
public  law  of  Europe,  whose  nations  have  corrected  the  barbarism  of 
ancient  practices  which  place  private  as  well  as  public  property  under 
militar}'  law.'  [C.  Masse,  Rapports  du  droit  des  gens  avec  le  droit 
civil.     Vol.  I.,  p.  123,  §  118-149.] 

"This  doctrine  has  frequently  been  acted  on  in  the  United  States. 
Thus  it  has  been  held  by  the  Supreme  Court  that  when  New  Mexico 
was  conquered  by  the  United  States,  it  was  onl\'  the  allegiance  of -the 
people  that  was  changed;  their  relation  to  each  other,  and  their  rights 
of  property  remained  undisturbed.  [Leitensdorfer  i\  Webb.  20  How. 
170.] 

"The  same  has  been  held  as  to  California.  The  rights  acquired  under 
the  prior  Mexican  and  Spanish  law,  .so  it  was  decided,  were  '  con.secrated 
by  the  law  of  nations.'  [U.  S.  v.  Moreno,  1  Wall.  400.  See  U.  S.'V. 
Auguisola,  1  Wall,  352;  Town.send  v.  Greeley,  5  Wall.  326;  Dent  v. 
Emmeger,  14  Wall.  308;  Airhart  v.  Massieu.  IKS  U.  S.  491;  Mutual 
Assurance  Society  v.  Watts,  1  Wheat.  279;  Delassus  v.  U.  S.,  9  Peters, 


422  sovereignty:  its  acquisition  and  loss.  [§99. 

117:  Mitchel  /•.  U.  S..  9  Peters.  711:  Strother  /•.  Lucas,  12  Peters, 
41t»:  U.  S.  r.  Kepenti^rny.  :>  Wall.  211.] 

••The  (Tovornnient  of  the  United  States,  therefore,  holds  that  titles 
derived  from  a  duly  constituted  prior  foreign  government  to  which  it 
has  succeeded  are  "  conseci'ated  by  the  law  of  nations "  even  as  against 
titles  claimed  under  its  own  subsequent  laws.  The  rights  of  a  resident 
neutral — having  become  tixed  and  vested  ])v  the  law  of  the  country — 
cannot  be  denied  or  injuriously  affected  by  a  change  in  the  sovereignty 
or  public  control  of  that  country  by  transfer  to  another  government. 
His  remedies  ma^'  be  affected  by  the  change  of  sovereignty,  but  his 
r-ir//tfs  at  the  time  of  the  .hange  must  l)e  measured  and  determined  by 
the  law  under  which  he  acquired  them.  .  .  .  The  Government  of 
the  United  States  is  therefore  prepared  to  insist  on  the  continued 
validity  of  such  titles,  as  held  by  citizens  of  the  United  States,  when 
attacked  by  foreign  governments  succeeding  that  by  which  they  [were] 
granted.  Title  to  land  and  landed  improvements,  is.  by  the  law  of 
nations,  a  continuous  right,  not  subject  to  be  divested  by  any  retroactive 
legislation  of  new  governments  taking  the  place  of  that  l>v  which  such 
title  was  lawfully  granted.  Of  course  it  is  not  intended  here  to  deny 
the  prerogative  of  a  conqueror  to  confiscate  for  political  offenses,  or  to 
withdraw  franchises  which  by  the  law  of  nations  can  be  withdrawn  by 
governments  for  the  time  being.  Such  prerogatives  have  been  con- 
ceded ])y  the  United  States  as  well  as  by  other  members  of  the  family 
of  nations  by  which  international  law  is  constituted.  AVhat.  however, 
is  here  denied  is  the  rig-ht  of  any  government  to  declare  titles  lawfully 
granted  l)y  its  predecessor  to  ])e  vacated  because  they  could  not  have 
been  lawfully  granted  if  its  own  law  had.  at  the  time  in  question,  pre- 
vailed. This  pretension  strikes  at  that  principle  of  historical  municipal 
continuity  of  governments  which  is  at  the  basis  of  international  law." 

Mr.  Bayanl,  Sec.  of  State.  t<.  Mr.  Roberts.  Mar.  20,  1SS6,  MS.  Inst.  Chili.  XVII. 
IW.  200. 

•'My  recent  instructions  to  you  show  the  deep  concern  which  this 
GoviMjiment  feels  in  the  reported  operations  of  Germany  in  the  Samoan 
Islands.  Avith  which  we  have  treaty  relations.  We  have  no  treaty  rela- 
tions with  the  Mai'shall  or  Gilbert  groups.  Thev  are  understood  to 
belong  to  the  large  category  of  hitherto  unclaimed  islands  which  have 
been  under  no  asserted  administration,  and  where  the  traders  of  vari- 
ous nationalities  have  obtained  lodgment  through  good  relations  with 
the  natives.  Of  the  Gilbert  Islands  we  have  no  precise  information. 
Mr.  von  Alven.slel)en  recently  stated  in  conversation  that  the  German 
claim  to  the  Caroline  Islands  having  been  decided  adversely.  Germany 
would,  instead,  take  po.sse.ssion  of  the  Marshall  group.  It  is  under- 
stood, but  informally  .so.  that  an  arrangement  exi.sts  between  Great 
Britain  and  (jermany  whereby  the  two  powers  will  confine  their 
respective  insular   annexations  in  the  Pacific  Ocean   within   defined 


§  99.]  PRIVATE    RIGHTS.  423 

areas  or  zones,  and  that  under  this  arrang-enient  the  Marslmll  Islands 
fall  within  the  zone  where  (lerniany  ean  operate  without  eoininu-  into 
collision  with  Great  Britain. 

'*It  is  not  easy  to  see  how  either  Great  Britain  or  Gei'uianv  can 
assert  the  right  to  control  and  to  divide  between  them  insuhir  posses- 
sions which  have  hitherto  been  free  to  the  trade  of  all  fiags.  iiiid  which 
owe  the  civilizing-  rudiments  of  social  organization  they  possess  to 
the  settlement  of  pioneers  of  other  nationalities  than  British  or  Ger- 
man. If  colonial  acfpiisition  were  an  announced  policy  of  the  Tnited 
States,  it  is  clear  that  this  country  would  have  an  eipial  right  with 
Great  Britain  or  Germany  to  assert  a  claim  of  possession  in  i-(\sp(>('t  of 
islands  settled  ])y  American  citizens,  either  alone  or  on  a  footing-  of 
equality  with  British  and  German  settlers. 

"There  are  islands  in  the  Pacitic  Ocean  known  to  ])e  wholly  in  the 
undisturbed  possession  of  American  citizens  as  peac(>able  settlers,  and 
there  are  many  others  where  American  citizens  have  established  them- 
selves in  common  with  other  foreigners.  We.  of  course,  claim  no 
exclusive  jurisdictional  right  by  reason  of  such  occupancy,  and  are 
not  called  upon  to  admit  it  in  the  case  of  like  occupancy  ])y  others. 

"What  we  think  we  have  a  right  to  expect,  and  what  we  are  confi- 
dent will  be  cheerfully  extended  as  a  recognized  right,  is  that  interests 
found  to  have  been  created  in  favor  of  peaceful  American  settlers  in 
those  distant  regions  shall  not  bo  disturbed  by  the  assertion  of  exclu- 
sive claims  of  territorial  jurisdiction  on  the  part  of  any  power  which 
has  never  put  forth  any  show  of  administration  therein;  that  their 
trade  and  intercourse  shall  not  in  any  way  be  hampered  or  taxed 
otherwise  than  as  are  the  trade  and  intercourse  of  the  citizens  or  sub- 
jects of  the  power  asserting  such  exclusive  jurisdiction,  and  in  short, 
that  the  equality  of  thcnr  tenancy  jointly  with  others,  or  the  validity 
of  their  tenancy  where  they  may  be  the  sole  occupants,  shall  be  ad- 
mitted according  to  the  established  principles  of  equity  and  justice." 

:\rr.  Bayard,  Sec.  of  State,  to  :\rr.  Pendleton,  Fel).  27,  1SS6,  :\IS.  Inst.  (ierm. 
XVII.  602. 

"As  to  the  outlying  unattached  groups  of  islands  [in  tlie  Taciiic],  dependent 
upon  no  recognized  sovereignty,  and  settled  sporadically  by  rei)resent- 
atives  of  many  nationalities  whcse  tenure  depends  on  prior  occupanc-y  of 
inhabited  territory  or  on  a  good  understanding  with  the  natives  oi  the 
inhaV>ited  island,s,  we  conceive  that  the  rights  of  American  settlers  therein 
should  rest  on  the  same  footing  as  others.  We  claim  no  exclusive  juri.s- 
diction  in  their  behalf,  and  are  not  called  upon  to  admit  on  the  part  of 
any  other  nationality  rights  which  might  operate  to  oust  our  i-itizens  from 
rights  which  they  may  be  found  to  share  equally  with  others.  In  cases 
of  actual  annexation  of  such  islands  by  any  foreign  jjower,  we  should 
expect  that  our  citizens  peacefully  established  there  would  be  treated  on 
a  ba.sis  of  ecjuality  with  the  citizens  or  subjects  of  such  power.  The.se 
views  have  been  communicated  to  our  ministers  at  London  and  Berlin 
Un-  their  guidance."  (Mr.  Bayard,  Sec.  of  State,  to  Mr.  Morrow,  Feb. 
26,  1886,  159  MS.  Dom.  Let.  177.) 


424  sovereignty:  its  acquisition  and  loss.  [S  99. 

Ap  to  the  claims  of  American  citizens  for  compensation  for  lands  alleged  to 
have  been  owned  l)y  them  and  to  have  ])een  appropriated  by  the  British 
colonial  government  in  Fiji,  gee  the  messuage  of  President  Cleveland  to  the 
Senate,  February  14, 1896,  S.  Ex.  Doc.  126,  54  Cong.,  1  sess.  The  message 
and  accompanying  report  of  the  Secretary  of  State,  together  with  the  report 
of  Mr.  <4eorge  H.  Scidinore,  special  agent  of  the  Department  of  State  to 
investigate  the  claims,  are  reprinted  in  For.  Rel.  1895, 1.  739.  Further  cor- 
respondence is  printed  in  S.  Doc.  140,  56  Cong.,  2  sess. 

As  to  Webster's  New  Zealand  land  claims,  see  For.  Rel.  1890,  344-356;  For. 
Rel.  1893,  319;  For.  Rel.  1894,  287. 

"'1  had  the  honor  to  receive  indue  course  3'our  note  of  the  6th 
ultimo,  whereby  \'ou  are  pleased  to  inform  me  that,  in  virtue  of  a 
treaty  engagement  l)etween  a  representative  of  the  governor  of  the 
Portuguese  possession  of  Sao  Thome  and  the  Kingdom  of  Dahomey, 
Portiigal  has  undertaken  to  exercise  a  protectorate  over  the  entire  sea- 
coast  of  Dahomey  and  to  administer  Portuguese  jurisdiction  over  Euro- 
peans residing  in  those  regions. 

"In  the  absence  of  information  as  to  how  this  change  may  affect  the 
interests  of  any  citizens  of  the  United  States  domiciled  or  doing  legit- 
imate business  in  that  part  of  Dahome^^  thus  taken  under  the  direct 
protection  of  Portugal,  I  am  unable  to  do  more  than  make  a  simple 
acknowledgment  of  the  receipt  of  your  note.  I  observe,  indeed,  that 
your  note  announces  that  your  Government  has  i>ledged  itself  to  respect 
the  legitimate  and  preexistent  rights  of  foreign  powers  to  the  territo- 
ries embraced  in  this  protectorate,  and  that,  in  consequence,  jurisdic- 
tional rights  as  to  the  port  of  Cotomnu  are  left  in  abe3ance  pending 
the  settlement  of  the  claim  of  France  thereto.  The  United  States  have 
no  jurisdictional  claims  of  sovereignt}'^  in  that  region  which  it  might 
invite  Portugal  to  respect,  but  it  is  to  be  assumed  that  the  rights  of 
an}^  American  citizens  in  the  protected  district  will  be  respected  as 
though  they  pertained  to  the  Government  of  the  United  States.  If 
citizens  of  the  United  States,  equally  with  the  citizens  or  subjects  of 
other  powers,  establish  them.selves  in  uncivilized  regions  and  acquii"e 
vested  interests  there  in  the  same  wa}"  as  foreigners  of  other  national- 
ities through  good  relationship  with  the  natives,  it  is  not  to  be  sup- 
posed that,  in  the  event  of  any  one  power  (among  the  several  repre- 
sented by  settlers  there)  assuming  control  of  the  country,  our  citizens 
will  be  discriminated  against,  in  residence  or  trade,  as  compared  with 
the  subjects  of  the  protecting  power. 

'■"This  point  is  therefore  necessarih'  reserved." 

Mr.  Bayard,  Sec.  of  State,  to  the  Viscount  das  Nogueiras,  Portuguese  min., 
March  3,  1886,  For.  Rel.  1886,  772. 

'•I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the 
22d  ultimo,  whereb^^  3'ou  convey  to  this  Government  official  informa- 
tion that  the  groups  known  as  the  Marshall,  Brown  and  Providence 


§  99.]  PRIVATE    RIGHTS,  425 

Islands,  situated  in  the  eastern  part  of  the  Caroline  group,  have  been 
placed  under  the  protection  of  His  Majesty  the  Emperor  and  King,  in 
pursuance  of  treaties  concluded  with  the  chiefs  of  those  islands,  in 
token  of  which  possession  has  been  taken  under  the  imperial  flag;  it 
being  understood  that  '  well-established  rights  of  third  parties  are  to 
be  duly  respected.' 

"In  the  absence  of  precise  knowledge  as  to  where  and  to  what 
extent  the  interest  of  citizens  of  the  United  States  are  among  those 
well-established  rights  of  third  parties,  which  the  Imperial  (xoVern- 
ment  declares  its  purpose  to  cause  to  be  respected,  I  am  unprepared 
to  determine  the  importance  to  be  attached  to  this  announcement, 
although  I  believe  I  interpret  it  rightl}"  as  a  frank  and  voluntary 
declaration  that  those  American  citizens  who  already  hav^e  established 
or  may  hereafter  esta])lish  themselves  on  those  islands,  in  peaceful 
accord  with  the  natives,  and  on  a  footing  of  perfect  equality  with  set- 
tlers of  German  and  other  nationality,  will  not  be  disturbed  in  their 
rights  of  residence  and  intercourse,  or  discriminated  against  as  com- . 
pared  with  German  subjects,  by  reason  of  this  establishment  of  a  Ger- 
man protectorate.  This  Government  has  never  claimed  for  itself  any 
exclusive  privileges  or  rights  in  those  regions  growing  out  of  the 
prior  or  contemporaneous  settlements  of  American  citizens,  and  it  can 
not,  of  course,  anticipate  that  any  such  exclusive  privileges  or  rights 
will  be  claimed  on  behalf  of  other  nationalities  to  the  prejudice  of 
Americans." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  von  Alvensleben,  German  min.,  March  4, 
1886,  For.  Rel.  1886,  333.  For  the  German  announcement  of  the  regula- 
tion of  the  Solomon  Islands,  under  the  protectorate  of  the  New  Guinea 
Company,  see  Mr.  von  Alvensleben,  German  min.,  to  Mr.  Bayard,  Sec.  of 
State,  Feb.  15,  1887,  For.  Rel.  1887,  419.  In  1899  Germany  acquired  from 
Spain  the  Caroline  Islands,  and  all  the  Ladrones,  except  Guam,  which  had 
been  ceded  to  the  United  States.  (Ann.  Reg.  1899  [.3.34],  31.)  See,  as  to 
the  rights  of  American  citizens  in  the  Carolines,  For.  Rel.  1886,  831-834. 

In  1892  Captain  Davis,  H.  B.  M.  S.  Eoyalid,  visited  the  Gilbert 
Islands  and  formally  declared  them  to  be  under  British  prot(H'tion. 
Citizens  of  the  United  States  had  during  the  preceding  fifty  years 
established  themselves  in  the  group,  and  on  May  25,  1888,  Mr,  Adolph 
Rick  was  conmiissioned  as  United  States  commercial  agent,  accredited 
to  the  local  authority,  with  residence  at  Butaritari,  Captain  Davis 
treated  his  commercial  agency  as  having  terminated  on  May  27,  1892, 
the  day  of  the  assumption  of  the  British  protectorate  over  the  group, 
and  declined  to  recognize  him  as  a  consular  representative  till  he 
should  be  accredited  to  the  Queen.  With  regard  to  this  incident,  and 
to  the  protection  of  the  vested  rights  of  American  citizens  in  the 
islands,  the  Government  of  the  United  States  said: 

"In  the  course  of  the  last  fewj^ears  foreign  protectorates  have  been 


426  sovEREiGi«"Tr:  its  acquisition  and  loss.  [§  99. 

asserted  over  territories  where  this  Government  had  established  consu- 
lar representation,  without  interruption  thereof,  until  a  new  appoint- 
ment recjuired  a  new  aet  of  I'ecognition.  Were  the  British  protectorate 
over  the  Ciilbert  Islands  deemed  to  be  of  a  different  character,  involving 
the  substitutory  credence  of  the  United  States  commercial  agent  forth- 
with to  Her  Britannic  Majesty,  this  Government  would  have  cheerfully 
considered  the  point  on  due  intimation  being  given  b}-  Her  Majesty's 
Government  through  the  regular  channnels.  I  am  unable  to  accept  the 
action  of  Capt.  Davis  as  such  usual,  timely,  and  friendly  notice  as  is 
due  from  one  power  to  another,  nor  can  1  suppose  Her  Majesty's  Gov- 
ernment desires  or  expects  that  it  should  be  so  accepted.     .     .     . 

'"As  I  have  already  said,  the  germs  of  civilization  were  planted  in  the 
Gilbert  group  by  the  zealous  endeavor  of  American  citizens  more  than 
half  a  century  ago.  The  result  of  this  work,  carried  on  by  American 
citizens  and  money,  has  been,  in  fact,  to  change  the  naked  barbarism 
of  the  island  natives  into  enlightened  communities  and  to  lay  the  foun- 
dations of  the  trade  and  commerce  which  have  given  those  islands 
importance  in  the  eyes  of  P^urope  to- day.  Wrought  by  the  agents  of  a 
colonizing  power,  this  development  would  have  naturally  led  to  a  par- 
amount claim  to  protection,  control,  or  annexation,  as  policy  might 
dictiite.  This  country,  however,  has  slept  upon  its  rights  to  reap  the 
benelits  of  the  development  produced  by  the  efforts  of  its  citizens;  but 
it  can  not  forego  its  inalienal)le  privilege  to  protect  its  citizens  in  the 
vested  rights  they  have  l)uilt  up  by  half  a  century  of  sacrifice  and 
Christian  endeavor.  .  .  .  You  will  take  an  early  occasion  to  make 
these  views  known  to  the  Earl  of  Koseber} .  You  will  say  to  him 
that  this  Government  believes  that  it  has  a  right  to  expect  that  the 
rights  and  interests  of  the  American  citizens  esta))lished  in  the  Gil- 
bert Islands  will  be  as  fully  respected  and  contirmed  under  Her  Maj- 
esty's protectorate  as  they  could  have  been  had  the  United  States 
accepted  the  ofliee  of  protection  not  long  since  solicited  by  the  rulers 
of  those  islands."*" 

Lord  Rosebery,  on  receiving  these  representations,  gave  "an  assur- 
ance that  the  rights  and  interests  of  United  States  citizens  established 
in  the  CiiD>ert  Islands  will  be  fully  recognized  and  respected  ])v  the 
British  authorities.'*''  Instructions  were  subsequently  given  for  the 
recognition  of  Mr.  Rick  in  his  consular  capacity,  and  regret  was 
expressed  that  he  did  not  receive  provisional  recognition,  although  it 
was  stated  that  Captain  Davis  appeared  "'to  have  been  technically  cor- 
rect in  his  vi<'w  that  Mr.  Rick's  appointment  should  be  notiffed  to  the 
protecting  powers  before  he  could  be  formally  recognized."'' 


"Mr.   Foster,   Stv.  ut   State,  to  Mr.  White,   cliargi*  at  LoikIoii,  Nov.  rt,  1892,  For. 
Rel.  Lsy2,  2:'.7,  239. 
'^For.  Kel.  1892,  246. 
'■For.  Rel.  1892,  2r>0. 


§  99.]  PEIVATE    EIGHTS.  427 

The  military  authorities  of  the  United  States  in  the  Philippines  were 
under  no  ol)ligation  to  sustain  or  support  arbitrary  proceedings  for 
the  eontiscation  of  the  property  of  Spanish  subjects  on  the  oTound  of 
dislo^-alty,  and  wlien  proceedings  taken  for  that  purpose  had  resulted, 
by  abandonment  or  otherwise,  in  the  original  owners  coming  again 
into  possession  of  their  property,  their  right  of  possession  was  not 
open  to  question  or  inquiry  on  the  part  of  the  United  States.  It  Avas 
therefore  advised  that  the  military  governor  should  be  directed  to 
return  to  certain  Spanish  subjects  in  the  Philippines  all  tiieir  pi-operty 
and  possessions  taken  l)y  the  United  States  in  pursuance  of  (leneral 
Otis's  order  of  Noveml)er  '2o,  1S9,S. 

(Iriggs,  At. -Gen.,  Feb.  21,  1S99,  22  Op.  8ol. 

By  Article  XIII.  of  the  treaty  of  peace  between  the  L'nited  States 
and  Spain  of  December  lU,  1898,  it  was  provided  that  rights  of  prop- 
erty secured  by  copyrights  and  patents  acquired  by  Spaniards  in  Cuba, 
Porto  liico,  and  the  Philippines  should  be  respected.  It  was  advised 
that  a  patent  or  license  granted  July  11,  1898,  to  a  Spaniard  for  the 
manufacture  of  hemp  by  steam  in  the  Philippines  for  the  term  of  five 
years  was  protected  ])v  this  provision  of  the  treaty  if  it  was  good 
under  Spanish  law,  although  the  American  law  may  give  no  identical 
rights.  The  stipulation,  it  was  held,  concerned  "only  Spanish  rights 
acquired  under  Spanish  laws."  and  that  it  em))raced  ''property  recog- 
nized by  the  Spanish  laws  which  correspond  with  our  patent  laws, 
even  if  that  property  was  not  identical  with  that  recognized  by  our 
laws."  ^ 

(inn^^^,  At. -Gen.,  Nov.  11,  lS9fl,  22  Op.  r,17. 

Rights  of  property  in  trade-marks  in  Cuba  and  the  Philippines  are 
entitled  to  the  protection  stipulated  for  "property  of  all  kinds"  in 
Arts.  I.  and  VIII.  of  the  treaty  of  peace  between  the  Ignited  States  and 
Spain  of  December  10.  1S98;  and  trade-marks  registered  prior  to  that 
time  in  the  international  registry  at  Berne  are  entitled  to  the  same 
recognition  and  protection  from  the  military  governments  of  Cuba 
and  tlie  Philippines  as  trade-marks  registered  in  the  national  registiy 
at  Madrid  or  in  one  of  the  provincial  registries  of  the  islands. 

]Vrr.  Magoon,  law  officer,  division  of  insTilar  affairs,  War  Di-jjt..  ^lanli  27,  1901, 

Majroon's  Keps.  ',iOr>. 
See,  fvirtlier,  as  t(j  the  protection  of  property  riglits  under  Arts.  I.  and  Vlll.  of 

the  treaty  of  peace,  Magoon's  Reports,  o41. 

The  rights  of  municipalities  were  not  destroyed  in  the  territory 
transferred  by  Spain  to  the  United  States,  and  their  rights  of  property 
were  protected  by  Art.  VIII.  of  the  treaty  of  cession. 

Re])ort9  of  ^Ir.  Magoon,  law  officer,  ^lagoon's  Reports,  1-574,  OoO. 
.\s  to  mining  claims  and  ai)pnrtenant  privileges  in  Cnha,  Porto  Rico,  and  the 
Philippines,  see  ^lagoon's  Reports,  .Sol. 


428  sovereignty:  its  acquisition  and  loss.  [§99. 

The  .situation  in  the  New  Hebrides  is  regulated  by  the  Anglo-French 
convention  of  November  IG,  1887,  supplemented  by  the  agreement  of 
January  26,  1888.  This  arrangement  was  in  the  nature  of  a  compro- 
mise. The  Australians  desisted  from  their  agitation  in  favor  of 
annexation  and  the  French  withdrew  the  two  naval  stations  which 
they  had  established  in  the  archipelago.  The  protection  of  persons 
and  property  was  entrusted  to  a  joint  commission  composed  of  two 
English  and  two  French  officers  and  a  president,  who,  in  alternate 
months,  was  to  be  the  French  or  English  commanding  officer  on  the 
station.  The  conventions  have,  it  is  stated,  been  found  to  possess  two 
radical  defects  in  failing  to  regulate  (1)  the  acquisition  of  land,  and  (2) 
the  importation  of  arms,  ammunition,  and  alcohol.  In  consequence, 
grave  disputes  have  arisen  between  the  English  and  the  French  as  to 
the  purchase  and  ownership  of  real  property,  and  also  as  to  the  labor 
question. 

Tlie  London  Timen  Weekly  Edition,  Jan.  8,  1902,  supplement,  iv. 

In  1728  Don  Sebastian  Calvo  de  la  Puerta  bought  at  public  auction 
from  the  Spanish  Crown  the  office  of  ' '  Alguacil  mayor," 
or  high  sheriff,  of  the  city  of  Habana,  Cuba.  The  office 
was  declared  to  be  perpetual  and  inherita])le,  and  it  finally  descended 
to  the  Countess  of  O'Reill}"  y  Buena  Vista.  Its  duties  included  the 
inspection  of  the  meat  supply,  and  for  this  service  the  holder  was 
authorized  to  exact  a  certain  sum  for  each  head  of  cattle  killed  at  the 
slaughterhouse.  This  privilege  was  alleged  to  be  worth  a  large  amount 
of  money,  a  half  interest  fn  which  was  purchased  at'  judicial  sale  in 
181)5  ])y  Dr.  Don  Gustavo  Gallet  Duplessis,  for  the  satisfaction  of  a 
private  debt.  On  the  American  occupation  of  Habana,  the  military 
authorities  of  the  United  States  refused  to  allow  the  Countess  of  Buena 
Vista  and  Dr.  Duplessis  to  exercise  the  authority  or  enjoy  the  emolu- 
ments of  the  office.  They  subsequently  appealed  to  the  Government 
of  the  United  States,  contending  (1)  that  the  office  was  property,  and 

(2)  that  as  such  it  was  protected  by  Art.  VIII.  of  the  treaty  of  peace 
of  Dec.  10,  1898,  and  by  international  law.  It  was  advised  (1)  that, 
although  the  perpetual  incumbency  of  the  office  was  sold  by  Spain,  it 
was  a  I'ight  subject  to  be  resumed  })y  the  sovereign  whenever  the  pub- 
lic welfare  required  it;  (2)  that  it  rested  on  a  contract  with  Spain,  per- 
sonal in  its  nature,  which,  as  it  was  not  assumed  by  the  United  States 
in  the  treaty  of  peace,  did  not  pass  with  the  transfer  of  sovereignty; 

(3)  that  whether  the  obligations  of  Spain  in  Cuba  were  to  be  assumed 
bj^  the  Government  estjiblished  by  the  people  of  the  island  was  a  ques- 
tion to  be  determined  by  that  Government  when  it  should  come  into 
existence;  (4)  that  the  question  whether  the  municipality  of  Habana 
was,  as  was  contended,  liable  for  the  payment  of  an  indemnity  by 
reason  of  any  proceedings  prior  to  the   military  occupation  of  the 


§  100.]       TEKRITORIAL    EXPANSION    OF    UNITED   STATES.  429 

United  States  wa.s  one  which  might  properly  be  referred  to  the  Cuban 
courts. 

Report  of  Mr.  Magoon,  law  officer,  Division  of  Insular  Affairs,  Aug.  H,  1900, 
Magoon's  Reports,  194.  See,  also,  the  case  of  Antonio  Alvarez  Nava  y 
Lobo,  a  notary,  in  Porto  Rico,  Magoon's  Reports,  454. 

"I  can  not  assent  to  the  proposition  that  the  right  to  perform  any 
part  of  the  duties  or  receive  an\'  part  of  the  compensation  attached 
to  the  office  of  sheriff  of  Habana  under  Spanish  sovereignty  consti- 
tuted a  perpetual  franchise  which  could  survive  that  sovereignt3\ 
The  fact  that  the  Spanish  Crown  permitted  an  office  to  be  inherited 
or  purchased  does  not  make  it  any  the  less  an  office  the  continuance 
of  which  is  dependent  tipon  the  sovereignty'  which  created  it. 

'•The  serv^ices  which  the  petitioner  claims  the  right  to  render  and 
exact  compensation  for  are  in  substance  an  exercise  of  the  police 
power  of  the  State.  The  right  to  exercise  that  power  imder  Spanish 
appointment  or  authority  necessarily  terminated  when  Spanish  sov- 
ereignty in  Cuba  ended.  It  thereupon  became  the  duty  of  the  mili- 
tary governor  to  make  a  new  provision  under  which  this  part  of  the 
power  of  the  new  sovereignty,  which  took  the  place  of  the  sov- 
ereignty of  Spain,  should  be  exercised  and  the  necessar}'  service 
rendered  to  the  public.  The  petitioner  has  been  deprived  of  no 
property  whatever.  The  office,  right,  or  privilege  which  she  had 
acquii'ed  lij  inheritance  was  in  its  nature  terminable  with  the  ter- 
mination of  the  sovereignty  on  which  it  depended. 

'"The  question  whether  by  reason  of  anything  done  before  that 
time  the  right  to  compensation  from  the  municipality  of  Ilabana 
has  arisen  is  a  (juestion  to  be  determined  by  the  courts  of  Cuba. 

"The  application  for  the  revocation  of  the  order  heretofore  made 
herein  by  the  military  governor  of  Cuba  is  denied.'' 

Decision  of  Mr.  Root,  Secretary  of  War,  in  the  matter  of  the  application  of 
the  Countess  of  Buena  Vista,  Dec.  24,  1900,  Magoon's  Reports,  209. 

V.  TERRITORIAL  p:XPANSION  OF  THE  UNITED  STATES. 

1.  Declarations  of  Policy. 

§100. 

*•  It  will  be  objected  to  our  receiving  Cuba  that  no  limit  can  then  be 
drawn  to  our  future  acquisitions.  Cuba  can  be  defended  by  us  without 
a  navy,  and  this  develops  the  principle  which  ought  to  limit  our  views. 
Nothing  should  ever  be  accepted  which  would  require  a  navy  to  defend 
it.'' 

Mr.  .lefferson  to  President  Madi.son,  Apr.  27,  1S09,  a  Jeff.  Works,  44.'>. 

'•''ThiK'  is  acting  for  us:  and  if  we  shall  have  the  wisdom  to  trust  its 
operation,  it  will  assert  and  maintain  our  right  with  resistless  force, 


430  sovereignty:  its  acquisition  and  loss.         [§  100. 

without  costing  a  cent  of  money  or  a  drop  of  blood.  There  is  often,  in 
the  art'airs  of  Government,  more  efficiency  and  wisdom  in  non-action 
than  in  action.  All  we  want  to  effect  our  object  in  this  case  is  "  a  wise 
and  masterly  inactivity.'  Our  population  is  rolling  towards  the  shores 
of  the  Pacific  with  an  impetus  greater  than  what  we  realize.  It  is  one 
of  those  forward  movements  which  leaves  anticipation  behind.  In  the 
period  of  thirty-two  years  which  have  elapsed  since  I  took  my  seat  in 
the  other  house,  the  Indian  frontier  has  receded  a  thousand  miles  to  the 
west.'  At  that  time  our  population  was  much  less  than  half  what  it  is 
now.  It  was  then  increasing  at  the  rate  of  about  a  quarter  of  a  million 
annually;  it  is  now  not  less  than  six  hundred  thousand,  and  still 
increasing  at  the  rate  of  something  more  than  3  per  cent,  compound 
annually.  At  that  rate  it  will  soon  reach  the  ^^early  increase  of  a 
million.  If  to  this  be  added  that  the  region  west  of  Arkansas  and  the 
State  of  Missouri,  and  south  of  the  Missouri  Kiver,  is  occupied  In- 
half-civilized  tribes,  who  have  their  lands  secured  to  them  by  treaty 
(and  which  will  prevent  the  spread  of  population  in  that  direction), 
and  that  this  great  and  increasing  tide  will  be  forced  to  take  the  com- 
paratively narrow  channel  to  the  north  of  that  river  and  south  of  our 
northern  boundary,  some  conception  may  be  formed  of  the  strength 
with  which  the  current  will  run  in  that  direction  and  how  soon  it  will 
reach  the  eastern  gorges  of  the  Rocky  Mountains.  I  say  some  con- 
ception, for  I  feel  assured  that  the  reality  w^ill  outrun  the  anticipation. 
In  illustration.  I  will  repeat  what  I  stated  when  I  tirst  addressed  the 
Senate  on  this  subject.  As  wise  and  experienced  as  was  President 
Monroe,  as  much  as  he  had  witnessed  of  the  growth  of  our  country  in 
his  time,  so  inadequate  was  his  conception  of  its  rapidity,  that  near  the 
close  of  his  administration — in  the  year  1824 — he  proposed  to  colonize 
the  Indians  of  New  York  and  those  north  of  the  Ohio  River  and  east 
of  the  Mississippi,  in  what  is  now  called  the  AVisconsin  Territory, 
under  the  impression  that  it  was  a  portion  of  our  territory  so  remote 
that  they  would  not  be  distur])ed  ])v  our  increasing  population  for  a 
long  time  to  come.  It  is  now  but  eighteen  jears  since,  and  already,  in 
that  short  period,  it  is  a  great  and  flourishing  territory  ready  to  knock 
at  our  door  for  admission  as  one  of  the  sovereign  members  of  the 
Union.  But  what  is  still  more  striking,  what  is  really  wonderful  and 
almost  miraculous  is  that  another  territory  (Iowa),  still  farther  west 
(beyond  the  ^lississippi)  has  sprung  up  as  if  l)y  magic,  and  has  already 
outstripped  Wisconsin,  and  may  knock  for  entrance  before  she  is  pre- 
pared to  do  so.  Such  is  the  wonderful  growth  of  a  population  which 
has  attained  the  numl)er  ours  has — yearly  increasing  at  a  compound 
rate — and  such  the  impetus  with  which  it  is  forcing  its  wa}',  resist- 
lessly.  westward.  It  will  soon,  far  sooner  than  anticipated,  reach  the 
Rocky  ^Mountains,  and  be  ready  to  pour  into  the  Oregon  Territory, 
when  it  will  come  into  our  possession  without  resistance  or  struggle; 
or.  if  there  should  be  resistance,  it  would  be  feeble  and  ineffectual. 


§  100.]         TEKKITOKIAL    EXPANSION    OF    UNITED    STATES.  431 

We  should  tht'ii  ha  as  much  strono-er  there,  comparatively,  than  (Ireat 
Britain,  as  she  is  noiv  stronger  than  we  are:  and  it  would  then  l)e  as 
idle  for  her  to  attempt  to  assert  and  maintain  her  exclusive  claim  to 
the  territory  against  as,  as  it  would  noa:  he  hi  u.s  to  attempt  it  <i<i<iinst 
her.  Let  us  be  wise  and  a))ide  our  time;  and  it  will  accomplish  all 
that  we  desire  with  more  certainty  and  with  infinitely  less  sacrifice 
than  we  can  without  it." 

Speech  of  Mr.  Calhoun,  on  the  Oregon  bill,  in  the  Senate,  Jan.  24,  1843;  4 
Calhoun's  Works,  245  et  ,«eq. 

''  It  is  our  policy  to  increase  by  growing  and  spreading  out  into  unoc- 
cupied regions,  assimilating  all  we  incorporate.  In  a  word,  to  increase 
by  accretion,  and  not  through  conquest  b}^  the  addition  of  masses  held 
together  by  the  cohesion  of  force.  No  system  can  be  more  unsuited  to 
the  latter  process,  or  better  adapted  to  the  former,  than  ourachuirable 
Federal  system.  If  it  should  not  be  resisted  in  its  course,  it  will  proba- 
bly fulfill  its  destiny,  w^ithout  disturbing  our  neighbors  or  putting  in 
jeopard}'  the  general  peace;  but  if  it  be  opposed  bv  foreign  interfer- 
ence, a  new  direction  would  be  given  to  our  energy,  much  less  favorable 
to  harmony  with  our  neighbors  and  to  the  general  peace  of  the  world. 
The  change  would  be  undesirable  to  us,  and  much  less  in  accord  with 
what  I  have  assumed  to  be  primary  objects  of  policy  on  the  part  of 
France,  England,  and  Mexico." 

Mr.  Calhoun,  Sec.  of  State,  to  Mr.  King,  Aug.  12,  1844,  3IS.  Inst.,  France,  XV. 
8,  12. 

This  passage  seems  to  have  stiggested  the  title  of  §  72  (jf  Wharton's  Int.  Law- 
Digest — "  Aecretion,  not  colonization,  the  policy  of  the  United  States."  It 
appears,  however,  that  the  idea  of  Mr.  Calhoun  was  accretion  l)y  means 
of  colonization,  as  opposed  to  the  increa.se  of  territory  by  conquest.  Indeed, 
"accretion"  and  "  colonization,"  instead  of  involving  opposite  concep- 
tions, rather  represent  different  aspects  of  the  same  i)rinciple,  accretion 
being  the  result  of  the  colonizing  process  described  bj'  Mr.  Calhoun  in  his 
speech  on  the  Oregon  bill,  suj^ra. 

"Until  recently,  the  acquisition  of  outlying  territory  has  not  ])een 
regarded  as  desirable  ))V  us.  The  purchase  of  Russian  America  and 
the  proposed  purchase  of  the  Danish  West  India  islands  of  St.  Thomas 
and  St.  John  may  seem  to  indicate  a  reversal  of  the  policy  adverted  to. 
Those  measures,  however,  may  be  presumed  to  have  been  adopted  for 
special  reasons."  But,  in  any  event,  it  appeared  to  be  unadvisable  to 
decide  upon  an  offer  of  other  distant  territor}^  while  the  question  of 
St.  Thomas  and  St.  John  was  pen<ling.  and,  even  if  that  question  were 
disposed  of.  the  President,  ])efore  making  up  his  mind  in  regard  to 
such  an  oft'er.  proljably  would  prefer  to  consult  Congress  in  regard  to 
it,  either  directly  or  indirectly. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bartlett,  min.  to  Sweden,  June  17,  18t>9,  MS. 
Inst.  Sweden,  XI V^  168. 


432  sovekeignty:  its  acquisition  and  loss.         [§  100. 

It  is  not  the  policy  of  tlie  United  States  to  undertake  in  Africa  the 
management  of  movements  within  the  particular  range  of  private  enter- 
prise. 

Mr.  Fish,  Sec.  of  State,  to  Sir  E.  Thornton,  Apr.  8,  1873,  MS.  Notes,  Gr.  Brit. 
XVI.  74. 

"The  polic}'  of  this  Government,  as  declared  on  many  occasions  in 
the  past,  has  tended  toward  avoidance  of  possessions  disconnected 
from  the  main  continent.  Had  the  tendency  of  the  United  States  been 
to  extend  territorial  dominion  bcA^ond  intervening  seas,  opportunities 
have  not  been  wanting  to  effect  such  a  purpose,  whether  on  the  coast 
of  Africa,  in  the  West  Indies,  or  in  the  South  Pacific.  No  such  oppor- 
tunit}'  has  been  hitherto  embraced,  and  but  little  hope  could  be  offered 
that  Congress,  which  must  in  the  ultimate  resort  be  brought  to  decide 
the  question  of  such  transmarine  jurisdiction,  would  favorably  regard 
such  an  acquisition  as  His  Excellency  proposes.  At  any  rate,  in  its 
political  aspect  merely,  this  Government  is  unprepared  to  accept  the 
proposition  without  subjection  to  such  wishes  as  Congress  and  the 
people  of  the  United  States  through  Congress  may  see  tit  to  express." 

Mr.  Frehnghuysen,  Sec.  of  State,  to  Mr.  Langston,  June  20,  1882,  MS.  Inst. 
Hayti,  II.  339,  referring  to  a  proposal  of  President  Salomon  t(j  cede  to  the 
United  States  the  island  La  Fortue. 

""A  conviction  that  a  fixed  policy,  dating  back  to  the  origin  of  our 
constitutional  Government,  was  considered  to  make  it  inexpedient  to 
attempt  territorial  aggrandizement  which  would  require  maintenance 
by  a  naval  force  in  excess  of  anj^  yet  provided  for  our  national  uses, 
has  led  this  Government  to  decline  territorial  acquisitions.  Even  as 
simple  coaling  stations,  such  territorial  acquisitions  would  involve 
responsibility  beyond  their  utility.  The  United  States  have  never 
deemed  it  needful  to  their  national  life  to  maintain  impregnable  for- 
tresses along  the  world's  highways  of  commerce.  To  considerations 
such  as  those  prevailing  in  Congress  the  failure  of  the  Samana  lease 
and  the  St.  Thomas  purchase  were  doubtless  due.  During  the  years 
that  have  since  elapsed  there  has  been  no  evidence  of  a  change  in  the 
views  of  the  national  legislature  which  would  warrant  the  President  in 
setting  on  foot  new  projects  of  the  same  character." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Langston,  Feb.  1,  1884,  MS.  Inst., 
Hayti,  II.  3S0,  with  reference  to  a  proposal  to  cede  to  the  United  States 
"the  peninsula  and  bay  of  Le  Mole,  or  even  of  the  whole  Island  of 
Tortuga." 

''The  policy  of  the  United  States,  declared  and  pursued  for  more 
than  a  century,  discountenances  and  in  practice  forbids  distant  colonial 
acijiusitions.  Our  action  in  the  past  touching  the  acquisition  of  terri- 
tor}'  by  purchase  and  cession,  and  our  recorded  disinclination  to  avail 


§  I'JJ-]  LOUISIANA.  433 

ourselves  of  voluntary  proffers  made  by  other  powers  to  place  territo- 
ries under  the  sovereignt}-  or  protection  of  the  United  States,  are 
matters  of  historical  prominence." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Pendleton,  Sept.  7,    ISS.'i,  MS.  Inst.,  ( lerni 
XVII.  547. 

''Maintaining,  as  I  do,  the  tenets  of  a  line  of  precedents  from  A\'ash- 
ington's  day,  which  proscribe  entangling  alliances  w  ith  foreign  states, 
1  do  not  favor  a  policy  of  accpiisition  of  new  and  distant  territory,  or 
the  incorporation  of  remote  interests  with  our  own." 
President  Clevelantl,  First  Annual  Message,  1885. 

2.  Louisiana. 

§  101. 

The  treaty  and  two  conventions  concluded  at  Paris  under  the  date 
of  April  3(»,  1803,  by  Messrs.  Livingston  and  Monroe  on  the  part  of 
the  United  States,  and  M.  Marbois  on  the  part  of  France,  in  relation 
to  the  cession  of  Louisiana  to  the  United  States,  were  laid  by  Presi- 
dent Jefferson  before  the  Senate  on  the  17th  of  October,  1803,  and  the 
circumstances  of  the  transaction  were  at  the  same  time  explained  in  a 
message  to  both  Houses  of  Congress. 

Am.  State  Papers,  For.  Rel.  LI.  506.  The  treaty  ceded  lAwisiana  to  tlie 
United  States.  One  of  the  conventions  jirovided  for  the  jtayment  hy  the 
United  States  to  France  of  60,000,000  francs;  the  other,  for  the  payment 
by  the  United  States  of  "  debts"  due  by  France  to  citizens  of  the  United 
States  to  an  amount  not  exceeding  20,000,000  frani'S.  (Moore,  Int.  Arbi- 
trations, V.  4434.)  See  Howard,  The  Louisiana  ]*urchase  (Chicago, 
1902);  Hosmer,  Hist,  of  the  Louisiana  Purchase  (New  York,  1902). 

"'On  diU'erent  occasions  since  the  commencement  of  the  Fi'cnch 
revolution,  opinions  and  reports  have  prevailed  that  some  ])art  of  the 
Spanish  possessions,  including  New  Orleans  and  the  mouth  of  the 
Mississippi,  had  been  or  was  to  ])e  transferred  to  France.  .  .  . 
The  whole  subject  will  deserve  and  eng'ago  your  early  and  vigilant 
inquiries,  and  may  reqiure  a  ver}^  delicate  and  circumspect  manage- 
ment. What  the  motives  of  Spain  in  this  transaction  may  l)e,  is  not 
so  obvious.  The  policy  of  France  in  it,  so  far,  at  least,  as  relates  to  the 
United  States,  cannot  ])e  mistakiMi.  .  .  .  Although  the  two  coun- 
tries are  again  brought  together  In'  stipulations  of  amity  and  com- 
merce, the  confidence  and  cordiality  which  formerly  sul)sisted  have 
had  a  deep  wound  from  the  occurrences  of  late  ytnirs.  Jealousies 
probal)ly  still  remain,  that  the  Atlantic  States  have  a  partiality  for 
Great  Britain,  which  may,  in  future,  throw  their  weight  into  the  scale 
of  that  rival.  It  is  more  than  possible,  also,  that,  under  the  influence 
of  those  jealousies,  and  of  the  alarms  which  have  at  times  prevailed,  of 

H.  Doc.  551 28 


434  sovereignty:  its  acquisition  and  loss.         [§  101. 

a  projectod  operation  for  wresting  the  mouth  of  the  Mississippi  into 
the  hands  of  Great  Britain,  she  may  have  concluded  a  preoccupancy 
of  it  ^)y  herself  to  l)e  a  necessary  safeguard  against  an  event  from 
which  tliat  nation  would  derive  the  double  advantage  of  strengthening 
her  hold  on  the  United  States,  and  of  adding  to  her  commerce  a 
monopoly  of  the  iunnense  and  fertile  region  communicating  with  the 
sea  through  a  single  outlet.  This  view  of  the  subject,  which  suggests 
the  difficulty  which  may  be  found  in  diverting  France  from  the  object, 
points,  at  the  same  time,  to  the  means  that  may  most  tend  to  induce  a 
v^oluntary  relinquishment  of  it.  She  must  infer,  from  our  conduct 
and  our  communications,  that  the  Atlantic  States  are  not  disposed  to 
enter,  nor  are  in  danger  of  being  drawn,  into  partialities  towards 
Great  Britain  unjust  or  injurious  to  France;  that  our  political  and 
connnercial  interests  afford  a  sufficient  guaranty  against  such  a  state  of 
things;  that,  without  the  cooperation  of  the  United  Stiites,  Great 
Britain  is  not  likely  to  acquire  any  part  of  the  Spanish  possessions  on 
the  Mississippi;  and  that  the  United  States  never  have  favored,  nor, 
so  long  as  they  are  guided  by  the  clearest  polic}",  ever  can  favor,  such 
a  project.  She  must  be  led  to  see  again,  and  with  a  desire  to  shun,  the 
danger  of  collisions  between  the  two  republics,  from  the  contact  of 
their  territories;  and  from  the  conflicts  in  their  regulations  of  a  com- 
merce involving  the  peculiarities  which  distinguish  that  of  the 
Mississippi." 

Mr.  ^ladison,  Sec.  of  State,  to  Mr.  Charles  Pinckney,  iiiinister  to  Spain,  June 

9,  1801,  Am.  State  Papers,  II.  510. 
A  treaty  had  already  been  concluded,  at  St.  Ildefonso,  Oct.  1,  1800,  for  the 

restoraticjn  of   Louisiana   l)y  Spain  to  France.      (Am.  State  Pajiers,  For. 

Rel.  II.  511;    Davi.s'  Notes,  Treaty  Volume  (1776-1887),   1307;    Adams' 

History  of  the  United  States,  I.  370.) 

"Should  it  be  found  that  the  cession  from  Spain  to  France  has  irrev- 
ocably taken  place,  or  certainh'  will  take  place,  sound  policy  will 
require,  in  that  state  of  things,  that  nothing  be  said  or  done  which 
will  unnecessarily  irritate  our  future  neigh])ors,  or  check  the  liberality 
with  which  they  ma}'  l)e  disposed  to  exercise  in  relation  to  the  trade 
and  navigation  through  the  mouth  of  the  Mississippi;  everything 
being  (Mjually  avoided,  at  the  same  time,  which  may  compromit  the 
rights  of  the  United  States  beyond  those  stipulated  in  the  treaty 
between  them  and  Spain.  ...  In  the  next  place,  it  will  deserve 
to  be  tried  whether  France  cannot  l)e  induced  to  make  over  to  the 
United  States  the  Floridas,  if  included  in  the  cession  to  her  from 
Spain,  or  at  least  West  Florida,  through  which  several  of  our  rivers, 
particularly  the  inqwrtant  river  Mobile,  empty  themselves  into  the 
sea." 

Mr.  Madison,  >^iiv.  of  State,  to  ]\Ir.  Livinj^ston,  minister  to    France,  Se])t.  28, 
1801,  Am.  State  Papers,  For.  Kel.  11.  510. 


101. 


LOUISIANA.  435 


"The  cessioi\  of  Louisiana  and  the  Floridas  }>y  Spain  to  Fi'anee 
works  most  sorely  on  the  United  States.  .  .  .  It  completely 
reverses  all  the  political  relations  of  the  United  States,  and  will 
form  a  new  epoch  in  our  political  course.  .  .  .  Thei-e  is  on  the 
globe  one  single  spot,  the  possessor  of  which  is  our  natural  and  habit- 
ual enemy.  It  is  New  Orleans,  through  which  the  produce  of  three- 
eighths  of  our  territory  nuist  pass  to  market,  and  from  Its  fertility  it 
will  ere  long  yield  more  than  half  of  our  whole  produce,  and  contain 
more  than  half  of  our  inhal)itants.  France,  placing  herself  in  that 
door,  assumes  to  us  the  attitude  of  defiance.  Spain  uiight  have 
retained  it  quietly  for  years.  Her  pacific  dispositions,  her  feel)le 
state,  would  induce  her  to  increase  our  facilities  there  so  that  lier  pos- 
session of  the  place  would  hardly  be  felt  by  us,  and  it  would  not, 
perhaps,  be  very  long  before  some  circumstance  might  arise  which 
might  make  the  cession  of  it  to  us  the  price  of  something  of  more  worth 
to  her.  Not  so  can  it  ever  be  in  the  hands  of  France;  the  impetuosity 
of  her  temper,  the  energy  and  restlessness  of  her  character,  placed  in 
a  point  of  eternal  friction  with  us  and  our  character,  which,  though 
quiet  and  loving  peace  and  the  pursuit  of  wealth,  is  high-minded, 
despising  wealth  in  competition  with  insult  or  injury,  enterprising, 
and  energetic  as  any  nation  on  earth.  These  circumstances  render  it 
impossible  that  France  and  the  United  States  can  continue  long  friends 
when  they  meet  in  so  irritable  a  position.  .  .  .  The  day  that 
France  takes  possession  of  New  Orleans  fixes  the  sentence  which  is  to 
retain  her  forever  within  her  low-water  mark.  It  seals  the  luiion  of 
two  nations  who,  in  conjunction,  can  maintain  exclusive  possession  of 
the  ocean.  From  that  moment  we  must  marry  ourselves  to  the  Brit- 
ish fleet  and  nation.  .  .  .  This  is  not  a  state  of  things  we  seek  or 
desire.  It  is  one  which  this  measure,  if  adopted  by  France,  forces  on 
us  as  necessarih'  as  any  other  cause,  by  the  laws  of  nature,  brings  on 
its  necessary  effect.  It  is  not  from  a  fear  of  France  that  we  deprecate 
this  measure  proposed  by  her,  for,  however  greater  her  force  is  than 
ours,  compared  in  the  abstract,  it  is  nothing  in  comparison  to  ours 
when  to  be  exerted  on  our  soil,  but  it  is  from  a  sincere  love  of  peace, 
and  a  firm  persuasion  that,  bound  to  Franc-e  b}-  the  interests  and  strong 
sympathies  still  existing  in  the  minds  of  our  citizens,  and  holding  rela- 
tive positions  which  insure  their  contiimance,  we  are  secure  of  a  long 
course  of  peace,  whereas  the  change  of  friends,  which  will  be  rendered 
necessary  if  France  changes  that  position,  embarks  us  necessarily  as  a 
belligerent  power  in  the  first  war  of  Europe.  In  that  case  France 
will  have  held  possession  of  New  Orleans  during  the  interval  of  a 
peace,  long  or  short,  at  the  end  of  which  it  will  be  wi'ested  from  her. 
Will  this  short-lived  possession  have  been  an  eipiivalent  to  her  for  the 
transfer  of  such  a  weight  into  the  scale  of  her  enemy?  Will  not  the 
amalgamation  of  a  young,  thriving  nation  continue  to  that  enemy  the 


436  soveeeignty:  its  acquisition  and  loss.         [§  101. 

health  and  force  which  arc  now  , so  ovidcntl}"  on  the  decline?  And  will 
a  few  years'  possession  of  New  Orleans  add  equally  to  the  strength  of 
France  i  She  may  say  she  needs  Louisiana  for  the  supply  of  her  West 
Indies.  She  does  not  need  it  in  time  of  peace,  and  in  war  she  could 
not  depend  on  them,  because  they  would  be  so  easily  intercepted." 

President  Jefferson  to  Mr.  Livingston,   minister  to  France,   April   18,    1802, 

Jefferson's  Works,  IV.  431-433;  Randall's  Jefferson,  III.  6. 
See,  to  the  same  effect,  "Sir.  Madison,  Sec.  of  State,  to  Mr.  Livingston,  May  1, 

1802,  Am.  State  Papers,  For.  Rel.  II.  516;  Mr.  Madison,  Sec.  of  State,  to 
Mr.  Chas.  Pinckney,  May  11,  1802,  id.  517;  Mr.  Madison,  Sec.  of  State, 
to  :\rr.  Livingston,  Oct.  15,  1802,  id.  525. 

""Mr.  Monroe  will  be  the  bearer  of  the  instructions  under  which  you 
will  jointly  negotiate.  The  object  of  them  will  be  to  procure  a  cession 
of  New  Orleans  and  the  Floridas  to  the  United  States;  and  conse- 
(juently  the  establishment  of  the  Mississippi  as  the  boundary  between 
the  United  States  and  Louisiana.  In  order  to  draw  the  French  Gov- 
ernment into  the  measure,  a  sum  of  money  will  make  part  of  our 
])r()positions;  to  which  will  be  added,  such  regulations  of  the  commerce 
of  that  river,  and  of  the  others  entering  the  Gulf  of  Mexico,  as  ought 
to  ])e  satisfactory  to  France.  From  a  letter,  received  by  the  Presi- 
dent .  ,  .  ,  it  is  inferr(>d,  with  probability,  that  the  FrtMich  Govern- 
ment is  not  averse  to  treat  on  those  grounds.  And  such  a  disposition 
must  bo  strengthened  by  the  circumstances  of  the  present  moment." 

Mr.  Madison,  Sec.  of  State,  to  ]Mr.  Livington,  min.  to  France,  Jan.  18,  1803, 

Am.  State  Papers,  For.  Rel.  II.  529. 
See,  also,  Mr.  Madison,  Sec.  of  State,  to  Mr.  Pinckney,  min.  to  Spain,  Jan.  18, 

1803,  ibid. ;  Mr.  IVIadison,  Sec.  of  State,  to  Messrs.  Pinckney  and  Monroe, 
Feb.  17,  1803,  id.  532;  Mr.  Madison,  Sec.  of  State,  to  Messrs.  Livingston 
and  Monroe,  ]\Iarch  2,  1803,  and  Ai)ril  18,  1803,  id.  540,  555.  Also, 
Annals  of  Congress,  7  Cong.  2  sess.  (1802-3),  1100. 

'■  M.  Talleyrand  asked  me  this  day,  when  pressing  the  subject  [of 
the  cession  of  New  Orleans  and  the  Floridasj,  whether  we  wished  to 
have  the  whohi  of  Louisiana.  I  told  him  no;  that  our  wishes  extended 
only  to  New  Orleans  and  the  Floridas;  that  the  policy  of  France,  how- 
evei",  should  dictate  (as  I  had  shown  him  in  an  official  note)  to  give  us 
the  country  above  the  river  Arkansas,  in  order  to  place  a  barrier  be- 
tween them  and  Canada.  He  said,  that  if  thc}^  gave  New  Orleans  the 
rest  would  be  of  little  value;  and  that  he  would  wish  to  know  'what 
we  would  give  for  the  whole.'  I  told  him  it  was  a  subject  I  had  not 
thought  of;  1)ut  that  I  supjwsed  we  should  not  object  to  twenty  millions, 
provided  our  (-itizens  were  paid.  He  told  me  that  this  was  too  low  an 
oHVr;  and  that  ho  would  be  glad  if  I  would  reflect  upon  it  and  tell  him 
to-moi-row.  I  told  him  that,  as  Mr.  Monroe^,  would  ])e  in  town  in  two 
days,  1  woidd  delay  my  further  offer  until  1  had  the  pleasure  of  intro- 
ducing him.  He  added,  that  he  did  not  speak  from  authority,  but  that 
the  idea  had  struck  him.     I  have  reason,  however,  to  think  that  this 


§  101-]  LOUISIANA.  437 

resolution  was  taken  in  counfil  on  Saturday.  ...  I  think,  from 
every  appearance,  that  war  is  very  near  at  hand:  and.  undci-  these  cir- 
cumstances, I  have  endeavored  to  inipi-ess  tlie  GoverniUfMit  tliat  not  a 
moment  should  be  lost,  lest  Britain  should  anticipate  us.  .  ,  .  ;Mr. 
Monroe  arrived  on  the  1st  at  Havre."" 

Mr.  Livinofst^jn,  iniii.  to  France,  to  ^fr.  Madison,  Sec  of  State.  A|)ril  ]].  1S03, 
Am.  State  Pai)ers.  For.  Kel.  II.  552. 

"This  day  Mr.  Monroe  passed  with  me  in  examining  my  ])a]^ers; 
and  while  he  and  several  other  gentlemen  were  at  dinner  with  me,  1 
observed  the  Minister  of  the  Treasury  [M.  Mar})oisJ  walking  in  my 
garden.  ...  He  told  me  that  he  wished  me  to  repeat  what  I  had 
said  relative  to  M.  Talleyrand"s  requesting  a  proposition  from  me  as 

to  the  purchase  of  Louisiana He  said,  that  what  I  had  told 

him  led  him  to  think  that  what  the  Consul  had  said  to  him  on  Sunday, 
at  St.  Cloud,  .  .  .  had  more  of  earnest  than  he  thought  at  the 
time:  that  the  consul  had  asked  him  what  news  from  England;'  As 
he  knew  he  read  the  papers  attentively,  he  told  him  that  he  had  seen 
in  the  London  papers  the  proposition  for  raising  lifty  thousand  men 
to  take  New  Orleans.  The  Consul  said  he  had  seen  it,  too.  and  had 
also  seen  that  something  was  said  a])Out  two  millions  of  dollars  being 
disposed  of  among  the  people  about  him.  to  bribe  them,  etc.:  and 
then  left  him.  That  afterwards,  when  walking  in  the  garden,  the 
Consul  came  again  to  him.  and  spoke  to  him  a))out  the  troubles  that 
were  excited  in  America,  .  .  .  He  [Marbois]  then  took  occasion 
to  mention  his  sorrow  that  any  cause  of  ditf'erence  should  exist  between 
our  countries.  The  Consul  told  him.  in  reply,  "  Well,  you  have  the 
charge  of  the  Treasury:  let  them  give  you  one  hundred  millions  of 
francs,  and  pay  their  own  claims,  and  take  the  whole  country."  Scving, 
b}'  my  looks,  that  I  was  surprised  at  so  extravagant  a  demand,  he 
added  that  he  considered  the  demand  as  exorbitant,  an<l  iiad  told  the 
First  Consul  that  the  thing  was  impossible;  that  we  had  not  the  means 
of  raising  that.  The  Consul  told  him  we  might  borrow  it.  .  .  . 
He  then  pressed  me  to  name  the  sum.  ...  I  told  him  that  we  had 
no  sort  of  authority'  to  go  to  a  sum  that  l)ore  any  proportion  to  what 
he  mentioned;  but  that,  as  he  himself  considered  the  demand  as  too 
high,  he  would  oblige  me  by  telling  me  what  he  thought  would  be 
reasonat>le.  He  replied  that,  if  we  would  name  sixty  millions,  and 
take  upcm  us  the  American  claims,  to  the  amount  of  twenty  more,  he 
would  try  how  far  this  could  be  accepted.  I  told  him  that  it  was  vain 
to  ask  anything  that  was  so  greatly  lieyond  our  means:     . 

Mr.  Living.«ton,  inin.  to  France,  to  ;Mr.  Maxlisoii,  Sec.  of  State,  Apr.  13,  1803, 
iiii<lni<,'lit,  Am.  State  Papers,  For.  Kel.  553.     See,  also,  j)p.  554-583. 

"The  failure  of  ttie  Treaty  of  Amiens  to  restore  a  permanent  peace  induced 
Napiileon  to  determine  to  transft-r  all  tlie  Louisiana.s  to  the  I'uited 
States.  .  .  .  When  it  [the  negotiation]  was  concluded,  Napo]e<jn  said: 
'  This  acce>sion  of  territory  consolidates  forever  the  power  of  the  United 


488  sovereignty:  its  acquisition  and  loss.  [§  101. 

States,  an<l  I  have  ju.st  given  to  England  a  maritimo  rival  who  sooner  or 
later  will  humble  her  pride.'  "  (Davis,  Notes,  Treaty  Volume  (1776- 
1.SS7),  1307,  citing  (harden,  Traites  de  Paix,  VIII.  88.  See,  also,  Adams' 
History  of  the  United  States,  II.  17,  26-42. ) 

"Congress  witnessed,  at  their  last  session,  the  extraordinary  agita- 
tion produced  in  the  ]^ul)lic  mind  by  the  suspension  of  our  right  of 
deposit  at  the  port  of  New  Ork^ans.  no  assignment  of  another  place 
having  been  made  according  to  treaty.  They  were  sensible  that  the 
continuance  of  that  privation  would  be  more  injurious  to  our  nation 
than  any  consequences  which  could  flow  from  any  mode  of  redress.  Ijut 
reposing  just  confidence  in  the  good  faith  of  the  Government  whose 
officer  had  committed  the  wrong,  friendly  and  reasonable  representa- 
tions were  resorted  to.  and  the  light  of  deposit  was  restored. 

"Previous,  however,  to  this  period,  we  had  not  been  unaware  of 
the  danger  to  which  our  peace  would  be  perpetually  exposed  while  so 
important  a  key  to  the  commerce  of  the  Western  country  remained 
under  foreign  power.  Difficulties,  too,  were  presenting  themselves  as 
to  the  navigation  of  other  streams,  which,  arising  within  our  territo- 
ries, pass  through  those  adjacent.  Propositions  had,  therefore,  been 
authorized  for  obtaining  on  fair  conditions  the  sovereignty  of  New 
Orleans,  and  of  other  possessions  in  that  quarter  interesting  to  our 
quiet,  to  such  extent  as  was  deemed  practicable;  and  the  provisional 
appropriation  of  two  millions  of  dollars,  to  be  applied  and  accounted 
for  by  the  President  of  the  United  States,  intended  as  part  of  the  price, 
was  considered  as  conveying  the  sanction  of  Congress  to  the  aotjuisi- 
tion  proposed.  The  enlightened  Government  of  France  saw,  with  just 
discernment,  the  importance  to  both  nations  of  such  liberal  arrange- 
ments as  might  best  and  permanently  promote  the  peace,  friendship, 
and  interests  of  both;  and  the  property  and  sovereignty  of  all  Louisi- 
ana, which  had  been  restored  to  them,  have  on  cerfciin  conditions  been 
transferred  to  the  United  States  b}^  instruments  bearing  date  the  30th 
of  April  last.  When  these  shall  have  received  the  constitutional  sanc- 
tion of  the  Senate,  the}'  will  without  delay  be  conununicated  to  the 
Representatives  also  for  the  exercise  of  their  functions  as  to  those 
conditions  which  are  within  the  powers  vested  In-  the  Constitution  in 
Congress.  While  the  property  and  sovereignty  of  the  Mississippi  and 
its  waters  secure  an  independent  outlet  for  the  produce  of  the  Western 
States,  and  an  inicontrolled  navigation  through  their  whole  course, 
free  from  collision  with  other  powers  and  the  dangers  to  our  peace 
from  that  source,  the  fertility  of  that  coiuitrv,  its  climate  and  extent, 
promise  in  due  season  important  aids  to  our  Treasury,  an  ample  pro- 
vision for  our  posterity  and  a  wide-spread  held  for  the  blessings  of 
freedom  and  equal  laws." 

President  Jefferson,  Third  Annual  Message,  Oct.  17,  180.3. 
F(ir  the  approval  of  the  Ixjuisiana  purc-ha.se  by  John  Adams,  see  Works,  IX. 
631,  632. 


[§  1^2.  THE    FLORIDAS.  439 

As  to  the  boundaries  of  Louisiana,  see  Adams,  Hist,  of  tlic  United  States,  II. 

7,   13,   68,   245,   257-263,   273,   302-311;    TIL,    various   pages;    Ilouek,   the 

Boundaries  of  the  Louisiana  Purehase   (St.   Louis,   ]>\).  95).     Also,   The 

Louisiana  Purchase,  by  T'inger  Hermann. 
For  debates  in  the  Senate  and  the  Hoyse  on  the  treaty,  see  Annals  of  (Congress, 

8  Cong.  1  sess.,  1803-4,  pp.  45-70,  434-514,  545,  546. 
See  acts  of  Oct.  31,  1803,  and  March  19,  1804,  2  Stat.  245,  272. 
As  to  trial  by  jury  in  Louisiana,  see  State  >:  Fuentes,  5  La.  Ann.  427. 

3.  TiiK  Flokid.xs. 

S  102. 

By  the  treaty  signed  at  San  Lorenzo  el  Real,  Octohei-  27.  1705.  the 
boundary  between  the  United  States  and  the  Spanisli  colonies  of  East 
and  West  Florida  was  agreed  upon  in  confoi-mity  with  what  had  been 
stipulated  in  the  treaty  between  (Ireat  Britain  and  the  Tnited  States 
of  1782."  The  United  States  subsequently  laid  claim  to  West  Florida 
as  part  of  the  Louisiana  cession.^'  A  long-  negotiation,  embracing  the 
subject  of  spoliations,  of  the  right  of  deposit  at  New  Orleans,  and  the 
limits  of  Louisiana,  as  well  as  the  purchase  of  the  Floridas,  ended  in 
failure,  and  in  1808,  in  consequence  of  the  political  condition  of  Spain, 
diplomatic  relations  between  the  two  countries  were  suspended.';  At 
the  close  of  the  war  in  Europe  diplomatic  relations  were  restored,  but  a 
new  source  of  complaints  had  then  come  into  existence  in  the  revolt  of 
the  Spanish  colonies  in  America.'^  A  negotiation,  conducted  some- 
times at  Washington  and  sometimes  at  Madrid,  was  entered  upon  for 
the  settlement  of  all  difierences.  Little  progress,  however,  was  made 
in  it  till  1818.  On  January  1*)  in  that  year  the  United  States  put 
forward  a  proposal  under  which  Spain  was,  for  various  considerations, 
to  cede  all  claims  to  territory  eastward  of  the  Mississippi,  and  either 
to  accept  for  the  western  boundary  the  Rio  Colorado  from  its  mouth 
to  its  source,  and  a  line  thence  to  the  northern  limits  of  Louisiana,  or 
to  leave  that  boundary  unsettled.'  The  Spanish  minister  offered  to 
cede  the  Floridas,  the  United  States  agreeing  to  establish  as  the 
boundary  between  Louisiana  and  the  Spanish  possessions  one  of  the 
branches  of  the  ^Mississippi,  either  that  of  Lafourche  or  of  the  Atcha- 
falaya,  or  else  to  adopt  as  the  basis  of  settlement  the  uti  j»>xsl(/<'fls  of 
1768.  On  these  proposals  and  counter  proposals  a  long  discussion  as 
to  limits  ensued.     October  21-,  1818,  the  Spanish  ministcn-  submitted 

« 1  Op.  108,  Lincoln,  1802. 

'>Int.  Arbitrations,  V.  4519;  Am.  State  Papers,  For.  Rel.  I.  63:  11.  564;  111.  ;!9-l- 
400,  539;  Adams's  History  of  the  United  States,  V.  305-315;  2  Stats.  254. 

fJnt.  Arbitrations,  V.  4492-4493;  Am.  State  Paj^ers,  II.  469,  596,  613,  615,  626,  (535, 
667;  Adams's  Hist,  of  the  U.  S.,  II.  3. 

dlni.  Arbitrations,  V.  4494;  Am.  State  Papers,  For.  Kel.  111.  293. 

^Mr.  Adams,  Sec.  of  State,  to  Chev.  de  Onis,  Jan.  \^,  ISlS,  .\iii.  State  Papers,  For. 
Rel.  IV.  422. 


440  sovereignty:  its  acquisition  and  loss.         [S  102. 

certain  propositions,  which  embraced  the  cession  of  the  Floridas 
and  the  mutual  reiumciation  of  claims.  Mr.  Adams  replied  on  the 
31st  of  October,  and  brought  the  formal  discussions  practically  to  a 
close. '^'  February  'I'l,  1819,  there  was  concluded  a  treaty  which,  besides 
detining-  the  boundary  between  the  Louisiana  territory  and  the  terri- 
tories which  were  still  to  remain  to  Spain,  conveyed  to  the  United 
Stiites  not  only  the  Floridas.  Init  also  all  the  Spanish  titles  north  of  the 
42nd  parallel  of  north  latitude,  from  the  source  of  the  Arkansas  River 
to  the  Pacific  Ocean:  the  United  States  in  return  assumino-  the  pay- 
ment of  claims  of  its  citizens  against  Spain  to  an  amount  not  exceeding 
5,000,000  dollars,  and  engaging  to  cause  satisfaction  to  be  made  for 
certain  injuries  suffered  by  the  Spanish  inhabitants  of  the  Floridas  at 
the  hands  of  American  forces,  besides  extending  to  Spanish  commerce 
in  the  ceded  territories,  for  the  term  of  twelve  years,  privileges  which 
were  not  to  be  allowed  to  any  other  nation.'' 

■'The  United  States  having  proposed  in  1810  to  accept  a  cession  of 
Florida  as  a  basis  of  the  release  of  the  claims  held  by  citizens  of  the 
United  States  against  Spain,  offered  at  the  same  time,  l)y  way  of 
further  compromise,  to  take  the  Colorado  liiver  as  the  western  bound- 
ary of  the  Louisiana  purchase,  although  that  purchase  had  been 
previously  maintained  to  extend  as  far  as  the  Rio  Grande.  The  Span- 
ish minister.  Onis.  whose  intrigues  and  turDulence  had  l)een  a  constant 
source  of  difficulty  at  Washington,  insisted,  in  the  tirst  place,  upon 
the  restoration  to  Spain  of  that  section  of  what  was  called  West 
Florida  which  included  Mobile  and  the  adjacent  country.  He  also 
presented  as  a  set-off'  losses  to  Spain  from  depredations  b}'  expeditions 
which  he  alleged  had  been  fitted  out  at  New  Orleans  for  the  purpose 
of  assisting  the  insurgents  in  Texas  and  Mexico;  and  he  also  claimed 
that  vessels  from  the  insurgent  Spanish  colonies  should  be  excluded 
from  the  ports  of  the  United  States.  Jn  order  to  meet  the  latter  com- 
plaints so  far  lis  they  were  reasonable,  a  statute  was  passed  on  March 
3,  l8l»K  which  imposed  a  tine  of  ten  thousand  dollars,  forfeiture  of  the 
vessels  employed,  and  an  imprisonment  not  exceeding  ten  years,  on  all 
persons  engag(>d  in  fitting  out  vessels  to  cruise  against  powers  with 
which  the  Ignited  States  was  at  peace.'"     . 

"The  defiant  patriotism  of  Mr.  Adams  was  never  more  conspicu- 
ously shown  than  during  his  negotiations  with  Spain  in  respect  to  the 
puichase  of  the  Floridas,  and  in  no  part  of  his  public  life  were  his 
faults  of  temper,  and  his  antagonism  to  anyone  by  whom  his  personal 

"Am.  State  Papers,  For.  Rel.  IV.  5:50;  Int.  Ar1>itrations,  V.  4496. 

''Int.  Arl)itration.>^,  V.  4496-4497,  4519  et  seq. 

'The  (late  of  the  a<t  was  March  3,  LS17.  It  provided  that  the  fine  f*hould  in  no 
ca.se  exceed  .?10,000,  hut  left  it  to  the  discretion  of  the  court  to  impose  a  lower  pen- 
alty. C^  Stats.  ;570. )  The  repre.«entations  of  the  Spanish  minister  may  l>e  found  in 
Am.  State  Papers,  For.  Rel.  IV.  184-189.  Similar  representations  were  also  made 
by  the  Portiiirnese  minister.  "  (Ca.se  of  the  United  States  at  Geneva,  1:38-140;  Bemis' 
American  Neutrality,  54  et  seq. ) 


[§  102.  THE    FLORIDAS.  441 

ambition  was  thwarted,  le.ss  manifest.  In  Cono-ress.  tlie  policy  of  the 
Administration  in  respect  to  the  Fioridas  Avas  at  first  looked  upon 
coldly  by  the  rising  statesmen,  among  whom  Mr.  Clay  took  the  lead, 
whose  primary  object  was  early  recognition  of  South  American  inde- 
pendence. Florida  would  be  valualile.  l)ut  it  would,  in  any  view,  be 
one  of  the  prizes  of  a  war  with  Spain  which  they  expected  as  a  neces- 
sary and  not  undesirable  consequence  of  the  interposition  in  South 
America  they  proposed.  In  support  of  the  Administration,  in  delay- 
ing the  recognition  of  the  South  American  insurgents,  were  i-allied 
several  powerful  agencies:  (1)  The  conunercial  interests  of  the  North, 
which  deprecated  a  war  Avhich  would  expose  their  ships  to  Spanish 
privateers;  (2)  the  Southeastern  Atlantic  States,  of  whom  Mr.  Forsyth 
was  the  leading  spokesman  in  Congress,  who  desired  to  be  relieved 
from  border  collisions  by  purchasing  the  Fioridas  at  once;  and  (3), 
General  Jackson,  who  here  displayed  that  rare  sagacity  which  after- 
wards so  singularly  came  to  his  aid  in  mastering  not  only  the  opposi- 
tion of  others,  but  the  impulse  of  his  own  passions.  His  personal 
instincts  Avere  for  a  Spanish  war,  and  so  his  private  unpul)lished  letters, 
on  file  in  the  Department  of  State,  show.  He  l)urned  with  resentment 
at  what  he  considered  Spanish  atrocities  which  he  thought  were  all  the 
more  injurious  from  the  feebleness  of  the  power  by  which  they  were 
upheld.  He  was  ready  to  seize  and  occupy  Pensacola  and  other  posts 
which  he  thought  harbored  border  Indians  or  hostile  i-aiders.  But 
while  thus  making  the  United  States  as  vuicomfoi'table  a  neigh])or  to 
Spain  as  he  could,  underneath  all  his  correspondence  with  the  S})anish 
authorities,  lurked  the  suggestion.  *how  much  better  for  you  to  sell 
out.'  And  purchasing  he  urged  on  the  Administration  as  far  wiser, 
surer,  and  cheaper  than  conquering. 

"Mr.  Adams's  diary  explains  the  annoying  vicissitudes  to  which  the 
negotiation  was  subjected.  It  is  due  to  him  to  say  that  in  no  poi'tion 
of  his  diplomatic  correspondence  by  which  the  archivt's  of  the  I)<'part- 
ment  of  State  is  enriched,  did  he  display  more  vigor  and  at  the  same 
time  less  impatience  and  harshness  of  expression,  than  in  the  remark- 
a))le  papers  which  issued  from  him  during  this  protracted  negotiation 
with  Spain.  Of  Oni^,  the  Spanish  minister  at  Washington,  . 
it  is  sufficient  here  to  say  that  looking  upon  the  Ignited  States  with  a 
jealousy  and  dislike  which  he  was  so  little  able  to  I'epress  that  for 
^ome  time  his  reception  by  tlie  (lovernment  was  refus(>d.  his  diplo- 
matic subtlety  mad«>  him.  when  he  entered  at  last  on  the  negotiation, 
a   tit    instrument    of   the    procrastination    his    insti'uctions  advised." 

"De  Oiii.s  was  thus  deseri])e<l  l)y  ^Ir.  Adams:  "Cold,  ralculatinjr.  wily,  always 
conunaiiding  his  oun  teini)er,  jjroud  because  he  is  a  Spaniard,  but  supple  ami  cun- 
ning, acconunodating  the  tone  <tl"  his  pretensions  precisely  to  the  <legn'e  of  endurance 
of  Ills  opi>()nent,  bold  and  overbearing  to  the  utmost  extent  to  wliich  it  is  tolerated, 
careless  of  what  he  asserts  or  how  grossly  it  is  j)roved  to  be  unfounded,  his  morality 
appears  to  be  that  of  the  Jesuits  as  exposed  by  Pascal.  He  is  lal)orious,  vigilant,  and 
ever  attentive  to  his  duties;  a  man  of  business  ami  of  the  world."  (Mor.<e,  Life  of 
J.  Q.  Adams,  11-2.) 


442  sovereignty:  its  acqftsitton  and  loss.  [§  102. 

Whon,  however,  cession  of  some  sort  became  at  last  the  only  alter- 
native to  war,  and  when  it  was  clear  that  Onis's  past  conduct  and 
present  temper  precluded  him  from  successfully  concluding  the  nego- 
tiation, the  French  minister,  De  Neuville,  whose  tact  and  kindliness 
were  recognized  by  both  interests,  was  called  upon  to  intervene.  A 
compromise  was  through  this  agency  effected,  .  .  .  By  this 
treaty,  which  was  at  once  unanimously  ratified  by  the  Senate,  the 
Floridas  were  supposed  to  ])e  secured,  as  well  as  the  disputed  south- 
west boundary  settled.  Congress,  having  no  doubt  of  the  assent  of 
Spain,  passed,  just  on  the  eve  of  its  adjournment,  acts  authorizing  the 
establishing  of  local  governments  in  the  territory  so  won. 

"  But  the  assent  of  Spain  was  withheld,  as  Mr.  Adams,  with  rising 
impatience  and  indignation,  narrates  in  his  diary  and  protests  against 
in  his  correspondence.  This  refusal  to  accede  to  the  treaty  was  caused 
in  part  by  the  dilatory  temper  of  Cevallos,  the  Spanish  prime  minister, 
who  was  swayed  to  and  fro  l)y  two  conflicting  policies — that  of  reliev- 
ing his  (xovermnent  from  the  urgency  of  the  spoliation  claims,  and  that 
of  national  pride,  swelled  with  resentment  at  the  menacing  tone 
assumed  by  the  United  States  military  authorities  on  the  Florida 
border,  and  at  the  avow^ed  sympathy  of  a  large  pai't  of  the  i)opulation 
of  the  I'^nited  States  with  the  insurgents  in  the  Spanish  South  American 
colonies.'' 

"  \\'hen  the  treaty  for  the  purchase  of  Florida  had  been  ratified  by 
the  Senate,  Mr.  Forsyth  was  sent  with  it  to  Spain,  and  almost  at  the 
same  time  Onis,  whose  relations  to  the  United  States  had  never,  as 
has  been  seen,  been  cordial,  returned  to  join  the  ministr}-  at  Madrid. 
Ferdinand's  change  of  attitude  may  be  exphiined  b}'  this  change  in  his 
advisers.  He  had  consented  to  the  Florida  negotiation  under  the 
impi-ession  that  while  it  was  pending  South  American  independence 
would  not  be  recognized.  But  Onis  was  convinced  that  when  Florida 
was  ceded  South  American  independence  would  l)e  recognized;  and 
this  conviction  was  easily  communicated  to  both  King  and  Cortes. 
Even  the  concession  of  Texas,  unduly  liberal  as  it  was,  did  not  relieve 
Spanish  suspicions,  since  a  filibustering  invasion  of  Texas  by  adven- 
tureis  who,  though  acting  in  contempt  of  Federal  authorities,  yet  came 
from  tiie  Uniti^l  States,  left  the  impression  that  after  Fk)i'ida  was 
o])tained  b}'  treaty,  Texas  would  have  to  succuml).  Had  tiie  Spanish 
Government,  no  matter  for  what  motives,  ])romptly  disavowi^d  the 
treaty  as  made  in  excess  of  instructions,  the  United  States  would  have 
had  no  ground  for  sul)stantial  complaint,  no  matter  what  might  htive 
been  the  reasons  for  such  disavowal. ^'    But  th is  the  Spanish  Government 

«8ee  §  108,  as  to  Texa^^. 

''See,  contra,  Mr.  Adams,  Sec.  of  State,  to  Mr.  For.syth,  Aug.  18,  1819,  Am.  State 
Papers,  For.  Rel.  IV.  657-658.  Mr.  Adams  not  only  maintained  that  the  powers 
given  to  the  minister  were  ample,  but  he  al.'fo  declared,  "It  is  too  well  known,  and 
tl'.ey  will  not  dare  to  deny  it,  that  Mr.  Onis'  last  instructions  authorized  him  to  con- 
(  ede  much  more  than  he  did." 


§  102.]  THE    FLORTDAS.  443 

did  not  do.  It  is  a  principle  of  diplomacy  that  such  disavowal  should  be 
prompt;  no  complaint  came  from  Spain  until  seven  months  had  passed. 
The  announcement,  after  that  period,  that  Spain  meant  to  repudiate  a 
bargain  which  the  United  States  had  taken  every  intermediate  step  to 
fulfill,  naturally  awakened  in  the  minds  of  Mr.  Monroe  and  of  his 
Cabinet  indignation  as  well  as  surprise.  At  first,  as  we  are  told  in 
Mr.  Adams'  contemporaneous  diary,  th(»  impulse  was  to  occup}' 
Florida,  not  merely  on  treaty  grounds,  but  on  grounds  of  necessity,  to 
repel  the  raids  of  Indians  and  Spanish  marauders  which  had  their  l)ase 
in  Florida.  Spain,  it  was  argued,  has  neither  the  power  nor  the  will 
to  keep  Florida  from  being  the  starting  ground  for  these  outrages;  it 
is  necessary  that  the  United  States  take  the  matter  in  its  own  hands. 
So  urged  Mr.  Crawford,  whose  State  (Georgia)  w^as  peculiarly  exposed 
to  these  incursions;  so  at  first  felt  Mr.  Adams,  incensed  that  the  treat}- 
with  which  his  fame  was  identified  should  be  repudiated.  ]Mr.  Monr(je 
at  the  time  yielded  to  this  impulse,  but  after  consideration  he  concluded 
to  recommend,  not  immediate  occupation.  })ut  occupation  in  the  future, 
dependent  on  the  action  of  Spain. "^' 

Note  of  Dr.  Wharton,  Int.  Law  Dig.,  II.  §  161a. 

The  ostensible  ground  of  delay  on  the  part  of  Spain  was  a  question 
concerning  certain  large  grants  of  land  in  Florida,  made  by  the  King 
of  Spain  to  the  Duke  of  Alagon,  the  captain  of  his  guards;  the  Count 
of  Punon  Rostro.  one  of  his  chamberlains,  and  Mi\  Vargas,  treasurer 
of  the  household.''  By  Art.  VIII.  of  the  treaty  it  was  provided  that 
all  grants  of  land  made  in  the  ceded  territories,  by  His  Catholic 
Majesty  or  his  lawful  authorities,  ))efore  Jan.  24,  1818,  should  be 
ratified  and  confirmed;  but  that  all  grants  made  since  that  day,  *'  when 
the  first  proposal,  on  the  part  of  His  Catholic  Majesty,  for  the  cession 
of  the  Floridas  was  made,"  should  be  null  and  void.'"  When  the  treat}- 
was  signed,  the  three  grants  in  question  were  known  in  the  United 
States  ])y  rumor,  and  were  understood  by  the  negotiators  to  be 
included  in  the  annulment;  but  in  order  that  the  question  might  not 
be  left  undetermined,  Mr.  Forsyth,  who  was  sent  as  minister  to  Spain 
for  the  purpose  of  exchanging  the  ratifications  of  the  treaty,  was 
instructed  to  present  on  that  occasion  a  declaration  to  th(>  etiect  that 
the  grants  were  so  included.''  The  Spanish  Government  objected  to 
the  declaration  as  an  attempted  alteration  of  the  treaty,  and  returned 
one  of  Mr.  Forsyth's  notes  because  of  the  harshness  of  its  language, 
at  the  same  time  saying  that  the  King  would  send  a  representative  to 


"President  Monroe's  Ann.   Message,   Dec.  7,  1819.      Am.  State  Papers,  For.  Kel. 
IV.  627. 

''Am.  State  Papers,  For.  Rel.  IV.  510,  524. 

cThis  proposal  may  Ije  fonnd  in  Am.  State  Pajiers,  For.  Kt-l.  ]\'.  464. 

'^Am.  State  Papers,  For.  Kel.  IV.  652. 


444  SOVEREIGNTY :    ITS    ACQUISITION    AND    LOSS  [§  102. 

the  United  States  to  explain  his  intentions."  France,  Great  Britain, 
and  Russia  all  counseled  Spain  to  ratify  the  treat}^  while  they  urged 
the  United  States  to  pursue  a  conciliatory  course.  It  was  under  these 
circumstances  that  President  Monroe,  in  his  annual  message  to  Con- 
gress of  Dec.  T,  1819,  recommended  that  the  operation  of  the  proposed 
law  to  carry  the  treaty  into  effect  be  made  contingent,  so  as  to  afford 
"an  opportunity  for  such  friendl}'  explanations  as  may  be  desired 
during  the  present  session  of  Congress."''' 

In  January,  18:^0,  the  Spanish  (Tovernment  sent  out  as  its  plenipo- 
tentiary Gen.  Don  Francisco  Dionisio  Vives.''  He  arrived  in  Wash- 
ington early  in  April.  His  instructions  were  to  temporize  and  dela}". 
Besides  repeating  the  objection  to  the  proposed  declaration  as  to  grants, 
he  declared  it  to  l)e  indispensable  that  the  United  States  should  sup- 
press the  "  scandalous  system  of  piracy"  carried  on  from  its  ports, 
put  {111  end  to  "  unlawful  armaments,"  and  otherwise  cause  its  territory 
to  be  respected,  and  agree  not  to  form  any  relations  with  the  revolu- 
tionary governments  in  the  Spanish  provinces  in  America.''  It  was 
soon  learned,  however,  that  a  i-evolution  had  taken  place  in  Spain,  and 
that,  the  liberal  constitution  having  been  restored,  the  Government 
had  decided  to  submit  the  question  of  the  treaty  to  the  Cortes.  The 
United  States  rejected  the  conditions  proposed  ])y  Gen.  Vives,  and 
insisted  upon  the  annidment  of  the  grants,  but,  in  view  of  the  change 
that  had  taken  place  in  Spain,  President  Monroe,  in  a  message  to  the 
House  of  May  9,  1820,  advised  forbearance,  and  Congress  adjourned 
without  authorizing  the  taking  possession  of  the  territory.''  October 
5,  1S20,  the  Cortes  in  secret  session  advised  the  cession  of  the  Floridas, 
and  declared  the  controverted  grants  null  and  void.  The  Senate 
reattirmed  the  treaty  by  all  but  four  votes,  and  on  Feb.  22,  1821,  the 
ratitications  were  exchanged.'' 

The  formal  act  of  cession  or  certificate  of  transfer  of  East  Florida 
to  the  United  States  was  signed  fluly  10,  1821,  by  Gov.  Don  Jose 
Coppinger.  on  the  part  of  Spain,  and  Mr.  Robert   Butler,  commis- 

«I)<ju  Manuel  (xonzales  Salmon  to  Mr.  Forsyth,  Aug.  10,  1819,  Am.  State  Papers, 

IV.  (555-656.  See  as  to  the  causes  of  Spain's  delay,  Mr.  Adams,  Seo.  of  State,  to  Mr. 
Lowniles,  Dec.  21,  1819,  Am.  State  Papers,  For.  Rel.  IV.  674. 

''Am.  State  Papers,  For.  Rel.  IV.  627,  676. 

'Am.  State  Papers,  For.  Rel.  IV.  677-678. 

''Am.  Stat.  Papers,  For.  Rel.  IV.  676-680. 

'Am.  State  Pai>ers,  For.  Rel.  IV.  676. 

/Int.   Arbitrations,   V.  4497;    Am.  State  Papers,  For.  Rel.  IV.  612,  626,  650,  701; 

V.  127-i:«;  Morse,  Life  of  J.  Q.  Adanjs,  125;  S(-hurz,  Life  of  Clay,  I.  165.  For  the 
pur])ose  of  settling  land  titles  under  Art.  VIII. ,  Congress  established  a  board  of  three 
commissioners.  For  legislation  on  the  subject,  see  acts  of  May  8,  1822,  3  Stats.  709; 
Feb.  28,  1824,  4  Stats.  6;  March  3,  1825,  id.  102;  April  22,  1826,  id.  156;  Feb.  8, 
1827,  id.  202;  May  22,  1828;  id.  284;  May  26,  1830,  id.  405;   Jan.  23,  1832,  id.  496. 

For  further  correspondence  sent  to  the  House  Feb.  2,  1824,  as  to  the  treaty,  see 
Am.  State  Papers,  For.  Rel.  V.  263.  Correspondence  as  to  the  execution  of  the 
treaty  will  be  found  in  the  same  volume,  at  page  368. 


§  102.]  THE    FLORIDAS.  445 

sioner.  on  the  part  of  the  United  States."  Auu-.  s.  isiil,  Mr,  Butler 
.sent  to  Gov.  Andrew  Jackson  an  inventory  of  the  public  pi-opertv. 
including  fortifications  and  public  edifices,  transferred  to  him.  a-t-oni- 
panied  with  plans  and  charts.  Two  letters,  dated  Sept.  I  and  Oct.  4, 
1821,  and  relating,  respectively,  to  the  "archives  of  East  Florida"' 
and  ''maps,  charts,  etc.,  of  the  two  Floridas,"  were  addressed  by  (iov. 
Jackson  to  the  Department  of  State,  and  were  received  by  it.  though 
they  seem,  with  their  enclosures,  to  have  been  mislaid.  Many  docu- 
ments relating  to  the  cession  of  the  Floridas  were  sent  to  Congress  bv 
President  Monroe  with  his  annual  message  of  Dec.  .5,  1821.''  In  this 
message  President  Monroe  mentioned  the  failure  of  the  Cuban  authori- 
ties to  deliver  over  archives  in  their  possession  relating  to  the  Floridas. 
In  1832  Mr.  Jeremy  Robinson,  who  was  sent  as  conunissioner  to 
Havana  for  the  purpose,  obtained  and  sent  to  the  United  States  a 
numl)er  of  such  docu'iients.  while  others,  which  were  in  his  possession 
at  the  tune  of  his  death,  in  1834,  were  transmitted  to  the  I)e])artnient 
of  State  by  Mr.  N.  P.  Trist.  consul  at  Havana.  Among  the  latter  is 
a  list  of  the  "Fincas"  which  belonged  to  H.  C.  M.  at  St.  Augustine 
at  the  time  of  the  evacuation.'' 

"It  is  the  settled  doctrine  of  the  judicial  department  [following  that 
of  the  executive  and  legislative  departments]  of  this  Govei'nment,  tiiat 
the  treat}^  of  1819  ceded  no  territory  west  of  the  river  Perdido.  but 
only  that  east  of  it:  and  therefore  all  grants  made  ])y  Spain  after  the 
United  States  acquired  the  country  from  France,  in  1803,  are  void,  if 
the  lands  granted  lay  west  of  that  river;  because  made  on  the  territory 
acquired  by  the  treaty  of  1803:  which  extended  to  the  Perdido  east. 
It  was  thus  held  in  Fostisr  and  Elcim  v.  X<'d><(in,  2  Peters,  254,  and 
again  in  G<ircia  v.  Lee^  12  Peters.  515,  and  is  not  now  open  to  contro- 
versy in  this  court.  .  .  .  The  Spanish  Government  [however]  con- 
tinued to  exercise  jurisdiction  over  the  country,  including  the  city  of 
Mo))ile,  for  some  nine  years;  the  United  States  not  seeing  proper  to 
take  possession,  and  Spain  refusing  to  surrender  it.  .  .  .  The  right 
necessarily  incident  to  the  exercise  of  jurisdiction  rendered  it  proper 
that  permits  to  settle  and  improve  by  cultivation,  or  to  authorize 
the  erection  of  establishments  for  mechanical  purposes,  shouhl  be 
granted.  .  .  .  Although  the  United  States  disavowed  that  any  right 
to  the  soil  passed  by  such  concessions,  still  they  were  not  disregarded 
as  giving  no  equity  to  the  claimant:  on  the  contrary."  they  wine  to  a 
certain  extent  continued  by  the  United  States. 

Pollard's  Les.>^ee  v.  Files  (1844) ,  2  How.  591,  602.  (iO.S.     S.  I*..  Pdlianrs  Ia-ssl^o  r. 

Hagan,  '6  Pet.  212. 
For  an  elatorate  discussion  of  Spanish  titles  in  West  Florida,  see  re|)ort  of  Mr. 

Livingston,  Sec.  of  State,  to  President  .Jackson,  .June  12,  is;!2,  MS.  lieport 

Book,  Dept.  of  State. 

«Mr.  Butler  to  the  Secretary  of  State,  .July  l.'i,  1S21,  MSS.  Dept.  of  State. 
''Am.  State  Papers,  For.  Rel.,  IV.  740-SOS. 

'Mr.  Hunter,  2nd  Asst.  Sec.  of  State,  to  Mr.  Dockray,  Dec.  (3,  1S71,  91  MS.  Doni. 
Let.  499. 


446  SOVEREIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  103. 

4.  Texas. 
g  103. 

By  the  treat}'  signed  at  Washington,  Feb.  22,  ISli),  by  Mr.  fFohn 
Quincy  Adams,  Secretary  of  State,  on  the  part  of  the 
United  States,  and  Sefior  Don  Luis  de  Onis,  Spanish 
minister,  on  the  part  of  His  Catholic  Majest}^,  the  territory  called 
Texas,  hing  between  the  Rio  Grande  del  Norte,  or  Rio  Bravo,  and  the 
river  Sabine,  a  territory  long  in  dispute  between  France  and  Spain, 
and  after  1803  l)etween  Spain  and  the  United  States,  was  acknowledged 
to  belong  to  Spain.  Subsequently,  on  the  independence  of  Mexico,  it 
became  a  part  of  that  country." 

•'It  is  now  well  known  that  Mr.  Adams  maintained  that  the  Rio 
Grande  was  the  true  southwestern  })oundary  of  the  United  States,  and 
that  he  was  overruled  1)\'  a  majority  of  the  Cabinet,  who  concurred 
with  Mr.  Crawford  in  holding  that  Florida  was  so  essential  to  the 
Southeastern  States  that  the  movement  to  obtain  it  should  not  be 
clogged  by  del)atable  demands  for  territory  to  the  southwest.  But 
even  then  there  were  statesmen,  among  whom  was  Mr.  Cla}',  who, 
with  the  interests  of  the  Mississippi  Valley  at  heart,  held  that  Texas 
was  not  only  far  more  valuable  and  important  to  the  United  States 
than  F^lorida,  ])ut  that  Texas  alread}'  rightfully  belonged  to  the  United 
States.  Whether  General  Jackson,  who  was  appealed  to  b}-  Mr. 
Adams  for  support  on  this  issue,  agreed  with  Mr.  Adams  as  to  making 
the  Rio  Grande  the  boundary,  has  been  much  disputed.  Many  years 
afterwards,  when  the  ajinexation  of  Texas  w'as  opposed  by  Mr.  Adams 
as  an  undue  extension  of  slave  territory,  he  produced  his  diary  to  show 
that  General  Jackson  had  advised  its  surrender  by  President  Monroe. 
This  was  emphatically  denied  by  General  Jackson.  The  manuscript 
correspondence  on  file  in  the  Department  of  State  leads  us  to  an  inter- 
mediate position.  General  Jackson,  .when  the  Florida  treat}'  was 
under  consideration,  approved  of  it  as  affording  a  settlement  greatly 
to  be  preferred  to  a  continuance  of  the  border  and  Indian  warfare 
which  then  existed  on  the  Florida  lines,  or  to  a  war  with  Spain  which 
might  be  of  indefinite  duration  and  cost;  and  in  view  of  what  appeared 
to  him  the  overwhelming  importance  of  this  issue  he  overlooked  that 
of  the  southwestern  boundary.  There  is  nothing  to  show  that  the 
nature  of  our  title  to  Texas,  surrendered  by  the  Florida  treaty,  was  at 
that  time  brought  to  his  notice.  To  President  Monroe,  howevei",  the 
strength  of  this  title  was  well  known,  and  his  voluminous  unpu])lislied 
correspondence  shows  with  what  conscientious  and  patient  care  it  was 
considered  by  him.  The  ultimate  amiexation  of  Texas  to  the  United 
States  he  seemed  to  consider  as  inevital)le,  and  he  declared  ov^er  and 


"That  Texas  was  pi'operly  a  part  of  Louisiana,  see  Adams,  History  of  the  United 
States,  II.  7,  25(3,  294-300;  III.  33-34,  40,  G9,  80,  78,  139,  310. 


§  1*^^-]  TEXAS.  447 

over  again  that  he  would  not  permit  it  to  be  held  l)y  any  European 
power  but  Spain.  But  the  Missouri  question  was  then  looming  por- 
tentously before  his  anxious  eyes.  He  saw  a  great  party  in  the  North 
which  was  opposed  to  any  extension  of  slave  territory;  he  himself  was 
no  enthusiastic  defender  of  slavery.  If  Texas  had  then  been  won.  it 
could  only  have  been  brought  into  productive  occupancy  bv  slaverv, 
affording  a  new  stimulus  to  a  surreptitious  slave  trade.  In  the  course 
of  time  the  dominant  race  of  the  North  would  flow  down  into  it  and 
take  possession  of  it  and  occupy  it,  but  that  time  had  not  yet  come. 
It  was  better  not  to  press  a  claim  now  for  a  territory  for  which  we 
were  not  quite  ready,  when  the  effect  might  be  to  impede  our  acquisi- 
tion of  a  territory  which  we  needed  at  once.  It  is  remarkable  that 
this  view  of  the  acquisition  of  Texas  was  not  shared  by  Mr.  Adams, 
in  whose  mind  the  dangers  of  the  extension  of  slavery  had  not  yet 
become  such  as  to  influence  his  political  course.  He  not  only  ui-ged 
the  assertion  of  our  title  to  Texas,  necessarily  then  a  slave  State,  but 
he  assented  to  the  Missouri  compromise,  which  gave  the  Southwest  to 
slaver3^  The  issue,  in  fact,  was  fraught  with  consequences  which  Mr. 
Monroe  was  the  only  leading  statesman  of  his  da^-  to  foresee.  Texas, 
which  would  have  then  made  six  States  of  the  size  of  Pennsj'lvania, 
would  have  been  brought  into  the  Union,  and  with  the  population 
which  would  soon  have  poured  into  its  fertile  plains,  might  have  rivaled 
the  Northwest  as  a  field  for  pioneer  settlement.  Whatever  might  have 
been  the  effect  of  this  on  the  future,  in  the  final  struggle  with  slavery, 
there  is  no  question  that  the  introduction  of  such  an  element  of  con- 
tention at  that  time  would  have  been  to  expose  the  work  of  mainte- 
nance of  the  Union,  which  Mr.  Monroe  considered  to  be  his  especial 
charge,  to  perils  he  was  unwilling  to  encounter." 

Note  of  Mr.  Wharton,  Int.  Law  Dig.,  1st  ed.,  II.  284-2.S5,  §161a. 
See  also  Schurz,  Life  of  Henry  Clay,  I.  162-165; 
Morse,  Life  of  John  Quincy  Adams,  110  et.  seq. 

In  the  instructions  given  to  Mr.  Poinsett,  as  United  States  minister 

to  Mexico  in  1825,  it  was  suggested  Avith   reference 

to  the  limits  between  the  two  countries,  under  Art. 
and  annexation.  ^  '  . 

III.  of  the  treaty  between  the  United  States  and  Spam 
of  Fel).  22,  1819,  that  "if  the  line  were  so  altered  as  to  tlirow  alto- 
gether on  one  side  Red  River  and  Arkansas,  and  their  respective 
tributary  streams,  and  the  line  on  the  Sal)ine  were  removed  further 
west,"'  the  United  States  would  as  an  equivalent  for  tlie  i)roposed 
cession  stipulate  to  restrain,  as  far  as  practicable,  the  wild  Indians 
inhabiting  the  territory  from  committing  hostilities  and  depredations 
on  the  Mexican  territories  and  people." 

«Mr.  Clay,  Str.  of  State,  to  Mr.  Poinsett,  ^hirch  26,  1S25,  II.  Kx.  Dor.  42,  25  ('..ng. 
1  sess. ;  Br.  and  For.  State  Papers,  XXVI.  830. 


448  sovereignty:  its  acquisition  and  loss.         [§103. 

In  lsi}!t  Mr.  Poinsett  was  directed  to  open  negotiations  for  the  pur- 
ehase  of  "'all  that  part  of  the  province  of  Texas  which  lies  east  of  a 
lino  ))og-inning  at  the  Gulf  of  Mexico,  in  the  centre  of  the  desert,  or 
Grand  Pi'airie,  which  lies  Avest  of  the  Rio  Xueces,  and  is  represented 
to  1)0  nearly  two  hundred  miles  in  width,  and  to  extend  north  to  the 
mountains,  the  proposed  line  following  the  course  of  the  centre  of  that 
desert  or  prairie  north  to  the  mountains,  dividing  the  waters  of  the 
Rio  (rrande  del  Norte  from  those  that  run  eastward  to  the  Gulf;  and 
until  it  strikes  our  present  ])Oundarv  at  42^  north  latitude.''  Various 
sulistitutionary  linos  were  suggested  with  a  view  to  meet  an}^  objec- 
tions on  the  part  of  Mexico.  The  boundary  then  assumed  by  Mexico 
was  "deemed  objectionable,  as  well  on  the  ground  of  its  alleged 
uncertjiinty  as  for  reasons  of  a  different  character,''  among  which 
were  the  difficulties  to  which  it  gave  rise  in  the  repression  of  smug- 
glers and  outlaws,  and  the  prevention  of  Indian  depredations.'^' 

In  1835  Colonel  Anthony  Butler,  who  ))ore  to  Mr.  Poinsett  the 
instructions  of  1829,  and  who,  later  in  the  same  year,  succeeded 
]Mr.  Poinsett  as  the  diplomatic  representative  of  the  United  States  in 
Mexico,  was  directed  to  offer  half  a  million  dolhirs  for  the  bay  of  San 
Francisco  and  certain  adjacent  territor}-,  the  port  of  San  Francisco 
being  considered  especially  desiral^Ie  as  a  place  of  resort  for  the 
numerous  American  whaling  vessels  operating  in  the  Pacific.  Mr. 
Butler  was  also  to  continue  his  efforts  to  obtain  the  cession  of  Texas. '^ 

The  independence  of  Texas  was  declared  by  a  convention  of  dele- 
gates of  the  people  on  March  2,  1836.'"  In  the  follow- 
epen      .^      ^^^^^^  ^^^  Government  of  the  United  States  repelled 

ence.  '^  "  .  ' 

an  overture  of  annexation. '^ 

'"The  Goveriunent  of  the  United  States  sees  with  pain  a  prospect 
of  th«?  immediate  resumption  of  active  militarv  operations  between 
Texas  and  the  Mexican  Republic.  While  it  chiims  no  right  to  inter- 
fere in  tlie  controversy  between  those  countrios.it  can  not,  under  exist- 
ing circumstances,  be  inditforent  to  a  renewal  of  hostilities  between 
them.  Nearly  seven  j-ears  have  now  elapsed  since  Texas  has  main- 
tained   its    independence,  unmolested    by  invading  troops.       In  that 

^']Mr.  Van  Bureii,  Sec.  of  State,  to  Mr.  Poinsett,  Aug.  25,  1829,  H.  Ex.  Doe.  42,  25 
Cong.  1  sess. ;  Br.  and  For.  State  Pa])ers,  XXVJ.  8-50.  A  treaty  eonfirniing  the  limit.s 
under  the  Spani.^h  treaty  was  signed  by  Mr.  Poinsett,  Jan.  12,  1828  (Am.  State 
Papers,  For.  Rel.  VI.  !)46),  but  the  ratifications  were  not  exchanged  till  April  5, 
1832.  See,  as  to  delay.s  in  its  execution,  Br.  and  For.  State  Papers,  XXVI.  870-872, 
880  et  seq.;  treaty  between  the  United  States  and  ^lexico  of  April  3,  1835;  and  Int. 
Arbitrations,  II.  1213,  touching  the  incident  of  the  Gorostiza  pamphlet. 

'>Mr.  Forsyth,  Sec.  of  State,  Aug.  0.  1S.35,  MS.  Inst.  Mex.;  H.  Ex.  Doc.  42,  25 
(V)ng.  1  sess. ;  Br.  and  For.  State  I'apeis,  XX\'I.  887;  Mr.  Forsyth,  Sec.  of  State,  to 
Mr.  15utler,  Nov.  9,  1S.35,  MS.  Inst.  Mex. 

'S.  Ex.  D..C.  415,  24  Cong.  1  sess.;  Br.  and  F<jr.  State  Papers,  XXI  \'.  1269. 

'MI.  Ex.  Doc.  40,  25  Cong.  1  sess.;  Br.  and  For.  State  Papers,  XXV.  1404. 


103.] 


TEXAS.  449 


time  she  has  contracted  treaties  with  other  powers  in  both  hemispheres 
and  has  been  making  progress  in  the  arts  of  peace.  Events  have 
detached  her  from  Mexico  and  existing  circumstances  can  not  fail  to 
indicate  to  all  intelligent  observers  that  her  ultimate  reannexation  is 
among  the  things  most  to  be  doubted.  It  is  notorious  that  the  lan- 
guage, the  laws  and  the  habits  of  the  people  of  the  two  countries  are 
dissimilar,  that  in  these  and  in  other  respects  differences  exist  so  wide, 
as  not  to  promise  happiness  to  a  union  between  the  population  of  the 
two  states.  Texas  was  heretofore  the  remotest  northeastern  province 
of  Mexico,  its  distance  from  the  Mexican  capital  is  verv  great,  and 
the  character  and  population  of  the  intervening  country  are  such  that 
Mexico  could  hardly  hope  to  exercise  over  Texas  an  efficient  authority. 
Without  Texas,  Mexico  Avould  still  be  not  onh^  one  of  the  largest  sov- 
ereignties of  the  world,  but  would  possess  territory  which,  for  its 
position  and  other  great  natural  advantages,  would  be  difficult  to  be 
surpassed.  Her  jurisdiction  would  still  extend  over  a  vast  space, 
embracing  even  in  the  same  latitude,  in  consequence  of  the  different 
degrees  of  elevation  belonging  to  its  different  parts,  almost  every 
climate  and  every  j^roduction  of  the  habited  globe,  while  with  ports 
on  both  oceans,  she  offers  facilities  of  commerce  to  the  whole  world. 
On  the  other  hand  Texas  is  sutficienth'  large  for  a  respectable  com- 
nmnity.  Her  limits  are  defined  and  peace,  with 'an  opportunity  of 
improving  her  resources,  are  "much  more  important  to  her  than  anj'^ 
chances  of  territorial  acquisition.  The  Government  of  the  United 
States  feels  a  strong  interest  in  the  welfare  of  both  countries.  Both 
are  our  neighbors,  they  are  among  the  newly  organized  governments, 
the  regenerated  systems  of  this  hemisphere.  For  their  own  prosper- 
ity as  well  as  for  the  convenience  and  advantage  of  neighboring  States, 
they  require  repose,  security,  and  vigorous  application  to  the  arts  of 
peace.  Under  these  circumstances  the  President  directs  that  if  you 
should  receive  from  the  Mexican  Government  any  intimation  of  its 
desire  for  the  interposition  or  mediation  of  this  Government  for  the 
purpose  of  bringing  about  peace  between  Texas  and  Mexico,  3'ou  wiii 
state  that  such  interposition  or  mediation  will  be  cheerfully  granted. 
So  long,  however,  as  either  of  those  parties  shall  be  resolved  to  remain 
at  war  with  the  other,  and  unless  both  of  them  shall  request  the 
mediation  of  the  United  States,  the  President  would  not  be  inclined 
to  interfere.  The  opinion  of  this  Government  Avas  expi'essed  in  a 
letter  from  Mr.  Forsyth  to  Mr.  Dunlap,  late  representative  of  Texas 
here,  and  in  the  letter  of  General  Jackson  to  General  Santa  Anna, 
therein  referred  to,  a  copy  of  both  of  which  is  now  transmitted. 

"Although  policy  and  duty  dictate  this  reserve  on  our  part,  it  is  not 
to  be  disguised  that   the  immediate  and  permanent  interests  of  the 

«It  is  "are"  in  the  record,  ])ut  thin  doubtless  is  a  copyist's  error  for  "is,"  unless, 
indeed,  the  word  "with,"  in  the  i)receding  line,  should  be  "and," 

H.  Doc.  551 29 


450  sovekeignty:  its  acquisition  and  loss.  [§  103. 

United  States  call  loudly  for  the  cessation  of  hostilities  between  Texas 
and  Mexico.  So  long  as  the  war  continues,  our  extensive  commerce 
and  navigation  in  the  Gulf  of  Mexico  are  liable  to  vexations  and  inter- 
ruptions from  one  or  the  other  belligerent;  our  citizens  who  may 
desire  to  trade  with  or  travel  to  Mexico  across  the  Texan  frontier  may 
be  driven  back  or  be  seized  and  their  property  confiscated,  if  for  no 
other  cause,  from  the  difficulty  if  not  impossibility  for  the  Mexican 
local  authorities  to  distinguish  between  them  and  Texans. 

•'  It  is  proper  to  advert  to  another  consideraiion,  which  has  no  small 
weight  in  the  President's  mind.  It  is  the  danger,  should  the  war 
between  Mexico  and  Texas  be  renewed  and  prosecuted  by  the  use  of 
considerable  military  forces,  that  citizens  of  the  United  States  would 
be  inclined  to  take  part,  either  on  the  one  side  or  the  other,  to  such 
an  extent  as  might  possibly  compromit  the  neutrality  and  peace  of  this 
country,  or  at  least  create  jealousy  and  dissatisfaction.  Nothing  is 
more  probable  than  that  the  renewal  of  the  war  between  Mexico  and 
Texas,  and  the  known  fact  of  the  invasion  of  the  latter  country-  b}' 
the  foi'mer,  with  a  large  force,  would  ]>e  an  occasion  for  crowds  of 
persons  to  enter  Texas  and  take  their  share  in  the  chances  of  the  war. 
This  is  a  topic  upon  which  you  can  not,  perhaps,  very  well  speak  fully 
and  at  length,  to  the  Mexican  Government,  but  a  remote  and  delicate 
intimation  of  the  probability  of  such  occurrences  might  be  made  and 
ought  to  produce  in  the  counsels  of  that  government  great  caution  and 
deliberation.  The  more  general  ground,  which  I  have  already  stated, 
may  be  exhibited  without  reserve:  that  is  the  President's  clear  and 
strong  conviction  that  the  war  is  not  only  useless,  but  hopeless,  with- 
out attainable  object,  injurious  to  both  parties  and  likely  to  be.  in  its 
continuance,  annoying  and  vexatious  to  other  commercial  nations. 
The  President  consequently  relies  upon  your  address  to  bring  about 
the  o)»ject  desired,  which  he  hopes  may  be  accomplished  within  the 
limits  which  have  ))<^en  assigned."' 

:Mr.  Wfhstcr,  Sim-,  of  Statt',  tu  ^Ir.  Thompson,  June  2:!,  1S42,  MS.  Inst.  Mex- 
ico, XV.  179. 

"By  the  treaty  of  the  22d  of  February.  1819,  between  the  United 
States  and  Spain,  the  Sabine  was  adopted  as  the  line  of  boundary 
between  the  two  powers.  Up  to  that  period  no  considerable  coloniza- 
tion had  been  eti'ected  in  Texas;  ])ut  the  territory  between  the  Sabine 
and  the  Rio  Grande  1)eing  contirmed  to  Spain  by  the  treaty,  applications 
were  made  to  that  power  for  grants  of  land,  and  such  grants,  or  per- 
missions of  settlement,  were,  in  fact,  made  ])y  the  Spanish  authorities 
in  favor  of  citizens  of  the  United  States  proposing  to  emigrate  to  Texas 
in  numerous  families.  l)efore  the  declaration  of  independence  by  Mexico. 
And  these  early  grants  were  contirmed,  as  is  well  known,  by  successive 
acts  of  the  Mexican  Government,  after  its  separation  from  Spain.     In 


§  103.]  TEXAS.  451 

January,  1823,  a  national  colonization  law  was  passed,  holding-  out 
strong  inducements  to  all  persons  who  should  incline  to  undertake  the 
settlement  of  uncultivated  lands;  and  although  the  Mexican  law  pro- 
hibited for  a  time  citizens  of  foreig-n  countries  from  settling,  as  colo- 
nists, in  territories  immediately  joining  such  foreign  countries,  vet  even 
this  restriction  was  afterwards  repealed  or  suspended,  so  that,  in  fact, 
Mexico,  from  the  commencement  of  her  political  existence,  held  out 
the  most  liberal  inducements  to  immigrants  into  her  territories,  with 
full  knowledge  that  these  inducements  were  likely  to  act.  and  expect- 
ing they  would  act.  with  the  gi-eatest  effect  upon  citizens  of  the  Ignited 
States,  especially  of  the  Southern  States,  whose  agricultural  pursuits 
naturally  rendered  the  rich  lands  of  Texas,  so  well  suited  to  their 
accustomed  occupation,  objects  of  desire  to  them.  The  early  colonists 
of  the  United  States,  introduced  l)y  Moses  and  Stephen  Austin  under 
these  inducements  and  invitations,  were  persons  of  most  respectable 
character,  and  their  undertaking  was  attended  with  very  severe  hard- 
ships, occasioned  in  no  small  degree  l)y  the  successive  changes  in  the 
Government  of  Mexico.  They  nevertheless  persevered  and  accom- 
plished a  settlement.  And.  under  the  encouragements  and  allurements 
thus  held  out  by  Mexico, *other  emigi'ants  followed,  and  many  thou- 
sand colonists  from  the  United  States  and  elsewhere  had  settled  in 
Texas  within  ten  years  from  the  date  of  Mexican  independence.  Hav- 
ing some  reasons  to  complain,  as  the}'  thought,  of  the  govei'iiment 
over  them,  and  especially  of  the  aggressions  of  the  Mexican  military 
stationed  in  Texas,  they  sought  relief  l)y  applying  to  the  supreme 
Government  for  the  separation  of  Texas  from  Coahuila.  and  for  a 
local  govermnent  for  Texas  itself.  Not  having  succeeded  in  this 
object,  in  the  process  of  time,  and  in  the  progress  of  events,  they  saw 
fit  to  attempt  an  entire  separation  from  Mexico,  to  set  up  a  govern- 
ment of  their  own.  and  to  estalilish  a  political  sovereignty.  War 
ensued:  and  the  battle  of  San  Jacinto,  fought  on  the  21st  of  April, 
1830.  achieved  their  independence.  The  war  was  from  that  time  at  an 
end,  and  in  March  following  the  independence  of  Texas  was  formally 
acknowledged  l)y  the  Government  of  the  United  States." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Thompson,  Min.  to  Mexico,  .July  S,  1842, 

Webster's  Works,  VI.  445,  448. 
See,  as  to  Mexican  complaints  as  to  the  course  of  the  Tnited  States  toward 

Texas,  Br.  &  For.  State  Papers,  XXXI.  801  et  seq. 

"I  transmit  a  copy  of  two  notes  addressed  to  this  Department 
by  the  charge  d'affaires  of  Texas.  The  first,  dated  the  14th  ult., 
requests  the  interposition  of  this  Govermnent  for  tlie  purpose  of 
inducing  that  of  the  Mexican  Republic  to  abstain  from  carrying  on 
the  war  against  Texas  tiy  m(>ans  of  j)r(>datorv  incursions,  in  which  the 
proclamations  and  promises  of  the  Mexican  commandei-sare  flagranti}^ 
violated,  noncombatants  seized  and  detained  as  prisoners  of  war,  and 


452  sovereignty:  its  acquisition  and  loss.         [§-103. 

private  property  used  or  destroyed.  This  Department  entir3l\'  con- 
curs in  the  opinion  of  Mr.  Van  Zandt  that  practices  such  as  these 
are  not  justitiahh^  or  sanctioned  by  the  modern  law  of  nations.  You 
Avill  take  occasion  to  converse  with  the  Mexican  secretary,  in  a  friendly 
manner,  and  represent  to  him  how  g-reatly  it  would  contribute  to  the 
advantag-e  as  well  as  the  honor  of  Mexico  to  abstain  altogether  from 
predatoi'v  incursions  and  other  similar  modes  of  warfare.  Mexico  has 
an  undoubtc^l  right  to  subjugate  Texas  if  she  can.  so  far  as  other  states 
are  concerned,  by  the  common  and  lawful  means  of  war.  But  other 
states  are  interested  and  especially  the  United  States,  a  near  neighbor 
to  both  parties,  are  interested  not  only  in  the  restoration  of  peace 
between  them,  but  also  in  the  manner  in  which  the  war  shall  be  con- 
ducted, if  it  shall  continue.  These  suggestions  may  suffice  for  what 
you  are  requested  to  say.  amicabh'  and  kindly,  to  the  Mexican  secre- 
tary at  present.  But  I  may  add.  for  your  information,  that  it  is  the 
contemplation  of  this  (.Tovermuent  to  remonstrate  in  a  more  formal 
mannt'r  with  Mexico,  at  a  })eriod  not  fai'  distant,  unless  she  shall  con- 
sent to  make  ])eace  with  Texas,  or  shall  show  the  disposition  and  ability 
to  prosecute  the  war  with  respectable  forces. 

"The  second  note  of  Mr.  Van  Zandt  is  dated  the  :i4th  instant  and 
relates  to  the  mediation  of  the  United  States  for  the  purpose  of  effect- 
ing a  recognition  by  ]\Iexico  of  the  iiule})endence  of  Texas.  You  will 
not  cease  in  your  endeavors  for  this  purpose.  ])ut  it  is  not  expected 
that  you  will  deviat(>  from  the  instructions  which  have  heretofore  been 
given  to  you  upon  the  subject."" 

Mr.  Wehstcr.  St-c.  .,f  State,  to  Mr.  Thompson,  No.  26,  Jan.  .31,  1843,  MS.  Inst. 
Mexico.  XV.  •_>•_'!. 

*'ln  the  insti'uctioii  t(»  you  No.  2(>  of  the  81st  ult.  you  were  directed 
to  take  occasion  to  com crse  with  the  Mexican  Secretary  of  State  upon 
the  character  of  the  war  waged  by  Mexico  against  Texas.  You  will 
avail  yourself  of  a  similar  occasion  to  ac([uaint  him  in  the  same  wa}' 
that  this  (xovernment  intends  to  take  steps  for  the  purpose  of  remon- 
strating with  the  Texan  Government  upon  the  subject  of  marauding 
incursit)ns  into  Mexico,  whether  with  a  view  to  retaliation  or  other- 
wise. The  duty  of  the  United  States  as  a  neighbor  to  both  those  coun- 
tries and  as  an  impartial  friend  to  both  demands  that  no  proper  efforts 
should  be  omitted  by  us  to  induce  them,  .so  long  as  they  continue  in  a 
state  of  war  with  one  another,  to  carry  that  war  on  openly,  honorably, 
and  according  to  the  I'ules  recognized  ])y  all  civilized  and  Christian 
states  in  modei-n  times.  We  owe  this  duty  to  them;  we  owe  it  to  the 
interest  and  character  of  this  continent,  we  owe  it  to  the  cau.se  of 
civilization  and  human  improvement,  and  we  shall  discharge  it  with 
iujpartiality  and  with  tirmne.ss." 

Mr.  \Vel).<ter,  See.  of  State,  to  Mr.  Thomp.^on,  No.  2S,  Fel^.  7,  1S4.3,  .MS.  Inst. 
Mexico,  XV.  223. 


§  103.]  TEXAS.  458 

"Near  eight  years  have  elapsed  since  Texas  declared  her  independ- 
ence. During-  all  that  time,  Mexico  has  asserted  her  right  of  jurisdic- 
tion and  dominion  over  that  countr}',  and  has  endeavored  to  enforce 
it  by  arms,  Texas  has  successfully  resisted  all  such  attempts,  and  has 
thus  afforded  ample  proofs  of  her  ability  to  maintain  her  independence. 
This  proof  has  been  so  satisfactory  to  man}'  of  the  most  considerable 
nations  of  the  world,  that  they  have  formally  acknowledged  the  inde- 
pendence of  Texas  and  established  diplomatic  relations  with  her. 
Among  those  nations  the  United  States  are  included,  and,  indeed,  they 
set  the  example  which  other  nations  have  followed.  Under  these  cir- 
cumstances the  United  States  regard  Texas  as  in  all  respects  an  inde- 
pendent nation,  fully  competent  to  pianage  its  own  affairs  and  possessing 
all  the  rights  of  other  independent  nations.  The  Government  of  the 
United  States,  therefore,  will  not  consider  it  necessar}'  to  consult  any 
other  nation  in  its  transactions  with  the  Government  of  Texas.'' 

Mr.  Upshur,  Sec.  of  State,  to  Mr.  Almonte,  Dec.  1,  184.3,  MS.  Notes  to  :\Iexico. 

VI.  172,  178. 
See,  also,   Mr.    Upshur,   Sec.   of  State,   to  Mr.  Thompson,  Oct.  20,  1843,  MS. 

Inst.  ^Mexico,  XV.  264;  Mr.   Calhoun,   Sec.  of  State,  to  Mr.  Green,  April 

19,  1844,  id.  298. 

"Great  Britian  has  recognized  the  independence  of  Texas;  and 
having  done  so.  she  is  desirous  of  seeing  that  independence  finally 
and  formally  established,  and  generally  recognized,  especiall}"  b}" 
Mexico.  .  .  .  We  have  put  ourselves  forward  in  pressing  the  Gov- 
ernment of  Mexico  to  acknowledge  Texas  as  independent.  But  in 
thus  acting,  we  have  no  occult  design,  either  with  reference  to  any 
peculiar  influence  which  we  might  seek  to  establish  in  Mexico  or  in 
Texas,  or  even  with  reference  to  the  slavery  which  now  exists,  and 
which  we  desire  to  see  abolished  in  Texas." 

Earl  of  Aberdeen,  British  For.  Secretary,  to  Mr.  Pakenhain,  British  minister 
at  Washington,  Dec.  26,  1843,  Br.  &  For.  State  Papers,  XXXIII.  232. 
For  Mr.  Calhoun's  reply  of  April  18,  1844,  see  the  same  volume,  p.  2.36. 
In  this  reply  Mr.  Calhoun  animadverted  upon  the  antislavery  views 
expressed  by  Lord  Aberdeen. 
Mr.  Calhoun,  in  a  long  instruction  of  Aug.  1,  1844,  to  the  United  States  minis- 
ter to  France,  refers  to  a  declaration  made  by  the  King  at  the  minister's 
reception,  of  friendliness  toward  the  Ignited  States.  This  was,  said  Mr. 
Calhoun,  the  more  gratifying  as  previous  information  was  calculated  to 
create  the  impression  "that  the  (lovernment  of  France  was  ])r('pared  to 
unite  with  Great  Britian  in  a  joint  i)rotest  against  the  annexation  of  Texas 
and  a  joint  effort  to  induce  her  Government  to  witlidraw  the  ])roposition 
to  annex,  on  condition  that  Mexico  should  be  made  to  acknowledge  her 
independence."     (MS.  In.^^t.  France,  XV.  8.) 

A  treaty  for  the  annexation  of  Texas  to  the  United  States  was  signed 

at  Washington,  bv  Mr.   Calhoun,  on  the  part  of  the 

Annexation.       jj^^^^^^i  States,  and  Messrs.  Van  Zandtand  Henderson, 

on  the  part  of  Texas,  April  12, 1844.«     It  was  rejected  by  the  Senate.* 

«S.  Ex.  Doc.  341,  28  Cong.  1  sesa.;  Br.  and  For.  State  Papers,  XXXIII.  2.52,  262. 
6H.  Ex.  Doc.  271,  28  Cong.  1  sess.;  Br.  and  For.  State  Papers,  XXXIII.  258. 


454  sovereig]sty:  its  acquisition  and  loss.         [§  103. 

Mr.  Calhoun  directed  the  charge  d'affaires  of  the  United  States  to 
assure  the  Government  of  Texas  that  the  loss  of  the  treaty  did  not  nec- 
essarily involve  the  failure  of  the  project  of  annexation.  It  was 
admitted,  said  Mr.  Calhoun,  that  what  was  sought  to  be  effected  by 
the  treaty  might  be  secured  by  joint  resolution,  which  would  have  the 
advantage  of  requiring  only  a  majorit}-  of  the  two  Houses,  instead  of 
two-thirds  of  the  Senate.  A  joint  resolution  for  that  purpose  had 
accordingly  been  introduced  hy  Mr.  McDuffie,  of  South  Carolina,  in 
the  Senate,  and  was  laid  on  the  table  b}-  a  vote  of  15>  to  27,  many  mem- 
bers ))eing  absent,  on  the  ground  that  there  was  not  sufficient  time  to 
act  on  it.  Three  of  the  absentees,  and  also  three  who  voted  to  lay  on 
the  table,  were  known  to  be  favoi'able  to  annexation.  This  being  so, 
supposing  the  other  absentees  to  be  unfavorable,  only  two  Senators 
were  required  to  constitute  a  majority  of  the  whole  number.  The 
indications  in  the  other  House  were  still  more  favorable.'' 

'"No  measure  of  policy  has  been  more  steadih'  or  longer  pursued, 
and  that  by  both  of  the  great  parties  into  which  the  Union  is  divided 
[than  the  annexation  of  Texas].  Many  believed  that  Texas  was 
embraced  in  the  cession  of  Louisiana,  and  was  improperly,  if  not 
unconstitutionally,  surrendered  ])y  the  treaty  of  Florida  in  1819. 
Under  that  impression,  and  the  general  conviction  of  its  importance 
to  the  safety  and  welfare  of  the  Union,  its  annexation  has  been  an 
object  of  constant  pursuit  ever  since.  It  was  twice  attempted  to 
acquire  it  during  the  administration  of  Mr.  Adams,  once  in  1825, 
shortly  after  he  came  into  power,  and  again  in  1827.  It  was  thrice 
attempted  under  the  administration  of  his  successor.  General  Jackson, 
first  in  1821».  immediately  after  he  came  into  power,  again  in  1833,  and 
finally  in  183;"),  just  before  Texas  declared  her  independence.  Texas 
herself  made  a  proposition  for  annexation  in  1837,  at  the  commence- 
ment of  Mr.  Van  Buren's  administration,  which  he  declined,  not, 
however,  on  the  gi'ounds  of  opposition  to  the  policy  of  the  measure. 
The  United  States  had  previously  acknowledged  her  independence,  and 
the  example  has  since  been  followed  by  France  and  Great  Britain. 
The  latter,  soon  after  her  recognition,  began  to  adopt  aline  of  policy 
in  reference  to  Texas  which  has  given  greatly  increased  importance  to 
the  measure  of  annexation,  by  making  it  still  more  essential  to  the 
safety  and  welfare  ])oth  of  her  and  the  I'nited  States." 

Mr.  Calhoun,  Sec.  of  State,  to  Mr.  Shannon,  Sept.  10,  1844,  MS.  Inst.  Mexico, 

XV.  8(>9,  818. 
See  Mr.  Calhoun,  Sec  of  State,  to  Mr.  Pakenham,  British  minister,  April  18, 

1844,  Br.  and  For.  State  Papers,  XXXIII.  286. 

By  a  joint  resolution,  approved  March  1,  1845.  Congress  expressed 
it'  "consent**  that  the  territory  properly  included  within  and  right- 
fully belonging  to  the  Republic  of  Texas  might  be  erected  into  a  new 

(I  Mr.  Calhoun,  Sec.  of  State,  to  Mr.  Howard,  No.  1,  June  18,  1844,  MS.  Inst.  Texas. 


§  103.]  TEXAS.  455 

State,  to  be  called  the  State  of  Texas,  with  a  republican  forni  of 
government  to  be  adopted  by  the  people  of  said  Republic  by  deputies 
in  convention  assembled  with  the  consent  of  the  existing-  u-overnmGnt, 
in  order  that  the  State  might  l)e  admitted  as  one  of  the  States  of 
the  Union.  The  consent  of  Congress  was  given  upon  the  following 
conditions: 

1.  That  the  State  should  be  formed  subject  to  the  adjustuient  ])y 
the  United  States  of  all  questions  of  boundary  that  might  arise  with 
other  governments,  and  that  the  constitution  of  the  State,  with  the 
proper  evidence  of  its  adoption  by  the  people  of  Texas,  should  be 
transmitted  to  the  President  to  ))e  laid  ])efore  Congress  for  its  linal 
action  on  or  before  January  1,  184(). 

2.  That  the  State  when  admitted  into  the  Union,  after  ceding  to 
the  United  States  all  public  ediiices.  fortitications,  barracks,  ports 
and  harbors,  navy  and  navy -yards,  docks,  magazines,  arms,  arma- 
ments, and  all  other  property  and  means  pertaining  to  the  defense  of 
the  Republic,  should  retain  all  the  public  funds,  debts,  taxes,  and 
dues  of  every  kind  which  might  belong  to  or  be  due  and  owing  to 
the  Republic,  and  should  also  retain  all  the  vacant  and  unappropri- 
ated lands  lying  within  its  limits,  to  be  applied  to  the  payment  of 
the  debts  of  the  Republic,  and  the  residue  of  the  lands,  after  dis- 
charging such  debts  and  lialnlities,  to  be  disposed  of  as  the  State 
might  direct,  the  debts  and  liabilities  of  the  State  in  no  event  to 
become  a  charge  upon  the  United  States. 

3.  That  new  States  of  convenient  size,  not  exceeding  four  in 
number  in  addition  to  the  State  of  Texas  and  having  sufficient  popu- 
lation, might  thereafter  by  the  consent  of  Texas  be  formed  out  of  its 
territory,  which  States  should  be  entitled  to  admission  under  the  pro- 
visions of  the  Federal  Constitution;  and  it  was  further  provided  that 
such  States  as  might  be  formed  out  of  that  part  of  the  territory  lying 
south  of  3(5"  30'  north  latitude,  conuiionly  known  as  the  Missouri 
compromise  line,  should  ])e  admitted  into  the  Union  with  or  without 
slavery-  as  the  people  of  each  State  asking  admission  might  desire,  but 
that  in  an}"  State  or  States  which  should  be  formed  out  of  the  ter- 
ritory north  of  that  line  slavery  or  invohuitary  serxitude  except  for 
crime  should  be  pi'ohibited. 

The  resolution  further  provided  that  if  th(^  President  of  th(^  United 
States  should  deem  it  most  advisable,  instead  of  proceeding  to  su))mit 
the  resolution  to  the  Republic  of  Texas  as  an  ovc^rture  on  th(^  part  of 
the  United  States  for  admission,  to  negotiate  with  that  Republic,  then 
that  a  State  could  be  formed  out  of  the  Republic  of  Texas  with  suit- 
able extent  and  boundari(\s,  and  with  two  Representatives  in  Congress 
until  the  nextappoi-tionment  of  representation,  and  should  be  admitted 
into  the  l^nion  by  virtue  of  tiie  act  on  an  ecjual  footing  with  the  exist- 
ing States  as  soon  as  the  terms  and  conditions  of  such  admission  and 
the  cession  of  the  remaining  Texan  territory  to  the  United  States 
should  be  agreed  upon  by  the  Governments  of  Texas  and  the  United 


456  sovereignty:  its  acquisition  and  loss.         [§  103. 

Stiites.  The  sum  of  $100,000  was  appropriated  to  defray  the  expenses 
of  missions  and  negotiations  to  agree  upon  the  terms  of  admission  and 
cession,  either  b}'  treat}^  to  be  submitted  to  the  Senate,  or  by  articles 
to  be  submitted  to  the  two  Houses  of  Congress,  as  the  President  might 
direct." 

On  December  ^^9,  1845,  the  President  approved  a  joint  resolution  of 
Congress  for  the  admission  of  the  State  of  Texas  into  the  Union. 
This  resolution  referred  to  the  joint  resolution  of  March  1,  1845,  and 
recited  that  the  people  of  the  Republic  of  Texas,  b}-  deputies,  in  con- 
vention assembled  with  the  consent  of  the  existing  Government,  had 
adopted  a  constitution  and  erected  a  new  State  with  a  republican  form 
of  government,  and  had,  in  the  name  of  the  people  of  Texas  and  by 
their  authority,  ordained  and  declared  that  they  assented  to  and 
accepted  the  proposals,  conditions,  and  guaranties  contained  in  the  first 
and  second  sections  of  the  resolution  of  March  1.  It  further  recited 
that  the  constitution,  with  the  proper  evidence  of  its  adoption  ])y  the 
people  of  the  Republic  of  Texas,  had  been  transmitted  to  the  President 
of  the  U-nited  States  and  laid  before  Congress.  It  was  therefore  de- 
clared that  the  State  of  Texas  was  admitted  into  the  Union  on  an  equal 
footing  with  the  original  States  in  all  respects  whatever,  and  that  until 
the  Representatives  in  Congress  should  })e  apportioned  according  to  an 
actual  enumeration  of  the  inhabitants  of  the  United  States,  the  State 
should  be  entitled  to  choose  two  Representatives.* 

"Texas  had  declared  her  independence,  and  maintained  it  by  her 
arms  for  more  than  nine  years.  She  has  had  an  organized  Govern- 
ment in  successful  operation  during  that  period.  Her  separate  exist- 
ence as  an  independent  state  had  been  recognized  by  the  Ignited  States 
and  the  principal  powers  of  Europe.  Treaties  of  conunerce  and  navi- 
gation had  ])een  concluded  with  her  by  different  nations,  and  it  had 
become  manifest  to  the  whole  world  that  an}'  further  attemi)t  on  the 
part  of  Mexico  to  conquer  her  or  overthrow  her  Government  would  be 
in  vain.  Even  Mexico  herself  had  become  satisfied  of  this  fact;  and 
while  the  question  of  annexation  was  pending  before  the  people  of 
Texas,  during  the  past  sununer,  the  Government  of  Mexico,  by  a  formal 
act.  agreed  to  recognize  the  independence  of  Texas  on  condition  that 
she  would  not  annex  herself  to  any  other  power.  The  agreement  to 
acknowledge  the  independence  of  Texas,  whether  with  or  without  this 
condition,  is  conclusive  against  Mexico.  The  independence  of  Texas 
is  a  fact  conceded  by  Mexico  herself,  and  she  had  no  right  or  authority 
to  prescribe  restrictions  as  to  the  form  of  Government  which  Texas 
might  afterward  choose  to  assume." 

President  Polk,  First  Annual  Message,  Dee.  2,  1845. 

Texas  concluded  treaties  with  France  Sept.  25,  1889;  with  Oreat  Britain  Nov. 
13,  Nov.  14,  and  Nov.  16,  1840,  and  Feb.  6,  1844;  with  the  Netherlands 
Sept.  18,  1840;  with  the  United  States  April  11,  and  April  25,  1838. 


«5  Stats.  797.  «'9  Stats.  108. 


§  10-i-l  OREGON.  457 

The  prote^^t  of  Gen.  Almonte,  Mex.  mini.>^ter  at  Washington,  of  March  6,  1845, 
against  the  joint  ret^olution  of  March  1  (supra),  and  Mr.  Buchanan's  reply 
of  March  10,  1845,  may  be  found  in  Br.  and  For.  State  Papers,  XXXIII. 
246-248. 

See  a  communication  of  the  envoy  of  France  at  Mexico  to  the  Presi<lent  of 
Texas,  May  20,  1845,  a.s  to  ^Mexico's  acce[)tance  <jf  a  propo.sal  to  recognize 
the  independence  of  Texas  on  condition  that  .she  would  engage  not  to 
annex  herself  or  become  subject  to  any  other  jjower.     (Id.  249.) 

On  June  15,  1845,  the  President  of  Texas  proclaimed  an  armistice.     (Id.  251. ) 

For  various  proclamations  of  the  President  of  Texas,  the  ordinance  of  annex- 
ation (jf  July  4,  1845,  and  the  constitution  of  Texas,  see  id.  267-300. 

As  to  the  events  preceding  the  outbreak  of  the  ^lexican  war,  see  Int.  Arbitra- 
tions, II.  1246  et  seq.;  H.  Ex.  Doc.  144,  28  Cong.  2  sess.;  S.  Ex.  Doc.  81, 
28  Cong.  2  sess.;  S.  Ex.  Doc.  337,  29  Cong.  1  se&s.;  The  Atlantic  Monthly 
(1895),  LXXA^I.  371. 

5.  Oregox. 
§  104. 

In  1792  Capt.  Robert  Gray,  of  the  American  ship  Coinmhia^  entered 
and  explored  the  River  of  the  West,  wliich  he  named,  from  his  ship, 
the  Columbia  River.  On  Januar}'  18,  18U3,  President  Jefferson  sent 
a  confidential  message  to  Congress  recommending  that  an  appropria- 
tion be  made  for  western  exploration,  and  in  the  following  sunnner 
Lewis  and  Clark  set  out  on  their  memorable  expedition,  in  which, 
after  having  traversed  the  country  west  of  the  Mississippi,  they 
entered  the  main  branch  of  the  Columbia  and  descended  the  river  to 
its  mouth.  In  isil  John  Jacob  Astor.  an  American  merchant,  formed 
at  Astoria  a  fur-trading  settlement.  This  settlement  was  occupied  l)}- 
the  British  during  the  war  of  1812,  but  at  the  conclusion  of  peace  was 
restored  to  the  United  States,  in  conformity  with  the  requirements  of 
the  treaty.  In  addition  to  these  acts  of  discovery  and  occupation  the 
United  States,  by  the  treaty  of  Fel)ruary  22.  1819,  acquired  from 
Spain  all  her  rights  to  territory  on  the  Pacific  north  of  the  l:2d  paral- 
lel of  north  latitude. 

On  this  foundation  the  United  States  based  its  claim  to  Oregon,  a 
claim  which  v.as  disput(^d  by  Oreat  Britain.  The  territory  in  dispute 
was  bounded,  according  to  the  claim  of  the  United  States,  by  the  ■12d 
parallel  of  north  latitude  on  the  south,  by  the  line  of  54^  4t>'  on  the 
north,  and  h\  the  Rock}'  or  Stonv  Mountains  on  the  east.  It 
embraced,  roughly  speaking,  an  area  of  6(H >,()()()  square  miles.  By 
the  treaty  of  .lune  15,  1846,  the  dispute  l)etween  the  United  States 
and  Great  Britain  was  terminated  by  a  nearly  equal  division  of  the 
territory.  By  the  fir.st  article  of  this  treaty  the  boundary  was  con- 
tiimed  we.stward  along  the  49th  parallel  of  north  latitude  "'to  the 
middle  of  the  channel  which  separates  the  continent  from  \'ancouver's 
Island;  and  thence  southerly  through  the  middle  of  the  said  channel, 
and  of  Fuca's  Straits,  to  the  Pacific  Ocean:  Provided,  however,  that 
the  navigation  of  the  whole  of  the  said  channel  and  straits,  south  of 


458  sovereignty:  its  acquisition  and  loss.         [§105. 

the  4i>th  parallel  of    north  latitude,  remain  free   and  open  to  both 

parties.'' 

For  a  full  history  of  the  dispute  and  its  settlement,  and  of  the  grounds  of  fact 
and  of  law  involved  therein,  see  ^loore,  Int.  Arbitrations,  I.  chaps,  vii. 
and  viii.  See,  also,  Wheaton,  Int.  Law,  Dana's  ed.  250;  Twiss,  The  Ore- 
gon Territory. 

As  to  San  Juan  Island,  see  H.  Ex.  Doc.  77,  36  Cong.  1  sess. ;  S.  Ex.  Doc.  10, 
36  Cong.  1  sess. ;  S.  Ex.  Doc.  29,  40  Cong.  2  sess. 

6.  C.\i.iFORXiA  Axu  New  ^Iexico. 
§  105. 

After  the  annexation  of  Texas  to  the  United  States,  the  boundary 
between  the  United  States  and  Mexico,  as  defined  in  the  treat}"  between 
the  United  States  and  Spain  of  1819,  was  further  changed  by  the  treaty 
of  peace  concluded  at  Guadalupe  Hidalgo.  February  2,  1848.  under 
which  California  and  New  Mexico,  which  had  been  occupied  bj-  the 
American  forces  during  the  war,  passed  to  the  United  States,  the  lat- 
ter paying  to  Mexico  $15,000,000,  and  in  addition  assuming  the  pay- 
ment of  claims  of  citizens  of  the  United  States  against  Mexico  to  an 
amount  not  exceeding  $3,250,000.  B}^  Art.  Y.  of  the  treaty,  the  new 
line  was  defined  as  follows: 

'•The  boundar}'  line  between  the  two  Republics  shall  commence  in 
the  (nilf  of  Mexico,  three  leagues  from  land,  opposite  the  mouth  of 
the  Rio  Grande,  otherwise  called  Rio  Bravo  del  Norte,  or  opposite  the 
mouth  of  its  deepest  branch,  if  it  should  have  more  than  one  branch 
emptying  directlj'  into  the  sea;  from  thence  up  the  middle  of  that 
river,  following  the  deepest  channel,  where  it  has  more  than  one,  to 
the  point  where  it  strikes  the  southern  boundary  of  New  Mexico; 
thence,  westwardly,  along  the  whole  southern  boundary'  of  New  Mexico 
(which  runs  north  of  the  town  called  Paso)  to  its  western  termination; 
thence,  northward,  along  the  western  line  of  New  Mexico,  until  it 
intersects  the  first  branch  of  the  river  Gila;  (or  if  it  should  not  inter- 
sect any  branch  of  that  river,  then  to  the  point  on  the  said  line  nearest 
to  such  branch,  and  thence  in  a  direct  line  to  the  .same;)  thence  down 
the  middle  of  the  said  })ranch  and  of  the  said  river,  until  it  empties 
into  the  Rio  Colorado;  thence  across  the  Rio  Colorado,  following  the 
division  line  between  Upper  and  Lower  California,  to  the  Pacific 
Ocean. 

"The  southern  and  western  limits  of  New  Mexico,  mentioned  in  this 
article,  are  those  laid  down  in  the  map  entitled  'Map  of  the  United 
Mexican  States,  as  organized  and  defined  ])y  various  acts  of  the  Con- 
gress of  said  Republic,  and  constructed  according  to  the  best  authori- 
ties. RevLsed  edition.  Published  at  New  York,  in  1847,  b}^  J.  Dis- 
turnell;'  of  which  map  a  copy  is  added  to  this  treat}',  bearing  the 
signatures  and  seals  of  the  undersigned  Plenipotentiaries.     And.  in 


i  105.]  CALIFORKIA    AND    NEW    MEXICO.  459 

order  to  preclude  all  difficult}'  in  tracing  upon  the  o^round  the  limit 
separating  Upper  from  Lower  California,  it  is  agreed  tliat  the  said 
limit  shall  consist  of  a  straight  line  drawn  from  the  middle  of  the  Kio 
Gila,  where  it  unites  with  the  Colorado,  to  a  point  on  the  coast  of  the 
Pacific  Ocean,  distant  one  marine  league  due  south  of  the  southernmost 
point  of  the  port  of  San  Diego,  according  to  the  plan  of  said  port  made 
in  the  year  1782  by  Don  Juan  Pantoja.  second  sailing-master  of  the 
Spanish  fleet,  and  published  at  Madrid  in  the  year  1802,  in  the  atlas 
to  the  voyage  of  the  schooners  Sutil  and  Mexicana;  of  which  plan  a 
copy  is  hereunto  added,  signed  and  sealed  by  the  respective  Plenipo- 
tentiaries." 

May  13,  IS-IO,  ''Congress  declared  in  the  preamble  of  the  act  pro- 
viding for  the  prosecution  of  the  war  with  Mexico  that  '  bv  the  act 
of  the  Republic  of  Mexico  a  state  of  war  exists  between  that  Govern- 
ment and  the  United  States,'^'  and  on  the  same  dav  President  Polk 
made  proclamation  of  that  fact.''  AYhile  hostilities  were  going  on 
Nicholas  P.  Trist,  Chief  Clerk  of  the  Department  of  State,  was  dis- 
patched to  Mexico,  and  opened  negotiations  for  peace. ^  He  was 
instructed  to  demand  the  cession  of  New  Mexico  and  California  in 
satisfaction  of  claims  against  Mexico.'^  .  .  .  The  proposals  were 
rejected  by  Mexico,  and  the  commissioner  was  recalled  on  the  6th  of 
October,  18-17.  He  remained,  however,  in  Mexico,  notwithstanding 
the  instructions  to  return,  and  he  succeeded  in  concluding  the  treaty 
of  Guadalupe  Hidalgo  on  the  2d  of  February,  1848.  This  was  com- 
municated to  the  Senate  on  the  23d  of  February.*^  Sundry  amend- 
ments were  made  by  the  Senate  and  accepted  by  Mexico,  and  the  rati- 
fications were  exchanged  on  the  3<!th  of  May,  1848.  .  .  .  On  the 
6th  of  July,  1848,  the  President  communicated  the  treaty  to  Congress, 
with  a  message  asking  legislation  to  carry  it  into  effect.'"  (S.  Ex. 
Doc.  60,  30  Cong.  1  sess.) 

Davis,  Notes,  Treaty  Volume  (1776-1887),  1355-1356.  The  learned  author 
alt^o  cite.«,  in  connection  with  the  war  and  the  treaty  of  peace,  S.  Doc.  337, 
29  Cong.  1  sess.;  H.  Ex.  Doc.  196,  29  Cong.  1  sess.,  R.  Ex.  Doc.  1,  29 Cong. 
2  sess.;  S.  Ex.  Doc.  107,  29  Cong.  2  sess.;  S.  Ex.  Docs.  20  &  52,  30  Cong. 
1  sess.;  11.  Ex.  Docs.  40,  56,  and  60,  .30  Cong.  1  sess.;  S.  Ex.  Doc.  32,  31 
Cong.  1  se.ss. 

See,  a,s  to  the  claims  against  Mexico  and  their  settlement,  Moore,  Int.  Arbitra- 
tions, II.  1247-1255;  9  Stats.  94,  265,  393,  617;  S.  Ex.  Doc.  34,  32  Cong.  1  .sess. 

See,  as  to  the  annexation  of  Texas,  "Tlie  United  States  and  Mexico,"  by 
Ivlward  (t.  Bourne,  The  Am.  Hist.  Rev.  V.  (April,  1900),  491;  Ann. 
Report  of  the  Am.  Hist.  Assoc.  1899,  I.  155. 

"  9  Stats.  9. 

''  9  Stats.  999. 

'S.  Ex.  Doc.  20,  30  Cong.  1  sess. 

''S.  Ex.  Doc.  1,  30  Cong.  1  sess.  7.     Presi<lent's  Annual  Message. 

'  S.  Ex.  Doc.  52,  30  Cong.  1  sess. 


4(50  sovereignty:  its  acquisition  and  loss.         [§  106. 

Xo  treaty  or  coiivtHitioii  is  found  <rrantinj;  tlie  use  of  Pichilinque  Island  and 
Bay  to  the  United  States  as  a  coaliiifi:  station.  Tlie  privilege  of  snch  use 
seems  originally  to  have  l)een  granted  by  (Governor  Pedfinia,  of  Ix)wer 
California,  in  a  communication  to  ^Mr.  Elmer,  T'nited  States  consul  at  La 
Paz,  Dec.  3,  1866.  Jan.  21,  1868,  <  Jovernor  Galvan,  of  the  same  province, 
•wrote  to  Mr.  Elmer:  "Coal  may  continue  to  l)e  deposited  at  Pichilincjue 
for  the  exclusive  use  of  your  war  vessels  until  the  Supreme  (iovernment 
may  otherwise  dispose."  Dec.  27,  1867,  the  Mexican  Secretary  of  State 
informed  ]Mr.  Plumb,  United  States  charge  d'affaires  in  Mexico,  that  the 
General  (Toverument,  assuming  the  unauthorized  grant  of  the  governor  of 
L(jwer  California,  ha<l  issued  onlers  forliidding  the  collection  of  duties 
ui>on  the  coal  already  deposited  and  directing  that  coal  intende<l  for  ves- 
sels of  Avar  of  the  United  States  be  allowed  at  any  chosen  jioint  in  the  port 
of  La  Paz,  or  the  adjacent  port  of  Pichilinque,  without  i)aying  duty  of  any 
kind.  (Mr.  Olney,  Sec.  of  State,  to  Sec.  of  Navy,  Oct.  18,  1895,  205  MS. 
Dom.  Let.  392,  inclosing  copy  of  a  dispatch  from  Mr.  Elmer  to  Mr.  Sew- 
ard, Dec.  16,  1866. ) 

7.  The  ^Iksilla  Yai.i.ky. 
ij  loc. 

By  the  coiivcntioii  coiu-ludcd  at  Mexico  Dec.  ;^(i.  18a8,  ]»y  James 
(ladsdeii,  on  the  part  of  t\w  United  States,  and  the  secretary  of 
foreign  rehitions  and  two  scientific  commissioners,  on  the  part  of 
Mexico,  the  latter  power,  in  consideration  of  the  sum  of  lo.OoO.oOO 
dolhirs,  released  the  United  States  from  aiu'  liability  on  ai-count  of 
certain  stipidations  of  the  treaty  of  1S4:8.  touching-  the  incursions  of 
savag'e  tril)es,  and  made  a  further  cession  of  territory;  and  it  was 
aji'reed  (Art.  T.)  that  the  ))oundary  should  ])e  as  follows: 

"The  Mt^xican  Kepul)lic  ag-rees  to  designate  the  following  as  her 
true  limits  with  the  United  States  for  the  future:  Retaining  the  same 
dividing  line  between  the  two  Ualifornias  as  already  defined  and 
estiiblished.  according  to  the  5th  article  of  the  treaty  of  Guadalupe 
Hidalgo,  the  limits  l)etween  the  two  republics  shall  be  as  follows: 
Beginning  in  the  (hilf  of  Mexico,  three  leagues  from  land,  opposite 
the  mouth  of  the  Kio  (iraride.  as  provided  in  the  fifth  article  of  the 
treaty  of  (niadalupe  Hidalgo;  thence,  as  defined  in  th(>  said  aiticle, 
up  the  middle  of  that  river  to  the  point  when^  the  parallel  of  31  47' 
north  latitude  crosses  the  same;  tluMic(>  due  west  on(^  hundred  miles; 
thenc(»  south  to  the  parallel  of  Hi  2o'  north  latitud(>;  thence  along  the 
said  }>arallel  of  'M  2o'  to  the  Lllth  meridian  of  longitude^  west  of 
Greenwich;  thence  in  a  straight  line  to  a  point  on  the  Colorado  River 
twenty  English  miles  ])elow  the  junction  of  the  Gila  and  Colorado 
rivers:  thence  up  tlie  middle  of  the  said  river  Colorado  until  it  inter- 
sects the  present  line  Ix'tween  the  United  States  and  ^Mexico. 

"In  conscMiuence,  the  stipulation  in  the  ath  article  of  the  treaty  of 
Guadahipe  upon  th(»  l)()imdarv  line  therein  described  is  no  longer  of 
any  force,  wherein  it  may  conflict  with  that  here  established,  the  said 


§  106.]  THE    MESILLA    VALLEY.  461 

line  being-  considered  annulled  and  abolished  wherever  it  may  not 
coincide  with  the  present,  and  in  the  same  manner  remaining-  in  full 
force  where  in  accoj-dance  with  the  same." 

By  conventions  of  July  2!»,  188:2,  Fe))ruary  Is,  1889,  and  August 
24,  1894,  provision  was  made  for  t\w  relocation,  by  an  International 
Boundary  Connnission,  of  the  line  under  the  treaties  of  1848  and 
1853,  in  places  where  the  monuments  of  prior  surveys  had  been 
destroyed  or  displaced. 

By  another  series  of  conventions,  provision  has  been  made  for  the 
examination  and  decision,  l)y  an  International  Boundary  Commission, 
of  all  ciuestions  g-rowing-  out  of  changes,  either  from  natural  or  from 
artificial  causes,  in  the  channels  of  the  Rio  Grande  and  Rio  Colorado, 
where  they  form  the  boundary.  The  conventions  in  question  were 
concluded  November  12,  1884;  March  1,  1889;  October  1,  1895; 
November  6,  1896;  October  29,  1897;  December  2,  1898. 

''One  of  the  causes  [of  the  conclusion  of  the  treaty  of  Dec.  30,  1853], 
it  is  evident  to  the  umpire,  was  the  complaints  constantly  made  })y  the 
Mexican  Government  to  that  of  the  United  States,  from  an  early  date 
after  the  conclusion  of  the  treaty  of  Guadalupe  Hidalgo  till  near  the 
end  of  1853,  that  the  stipulations  of  the  11th  article  of  that  treat}^  [relat- 
ing- to  the  prevention  of  Indian  incursions]  had  not  been  fulfilled  by  the 
latter  Government  and  that  it  consecjuentl}^  owed  indemnity  both  to 
the  Mexican  Goverimient  and  to  citizens  of  Mexico,  on  account  of  the 
damages  incurred  throug-h  this  failure.  The  correspondence  between 
the  two  Governments  was  of  an  irritating-  nature  and  seemed  likely  to 
excite  angry  feeling-s  on  both  sides.  It  was  therefore  the  interest, 
as  it  was  the  desire,  of  ])oth  Governments  to  put  an  end  to  this  state 
of  their  relations,  and  the  umpire  can  not  doubt  that  this  was  one  of 
the  causes  of  disag-reement  which  were  referred  to  in  the  preamble  of 
the  treaty  of  1853,  and  which  the  two  nations  desired  to  remove.     .     .    . 

"By  the  unratified  treaty  of  1853,  as  negotiated  by  Mr.  Gadsden  in 
Mexico,  that  Republic  ceded  to  the  United  States  a  certain  portion  of 
territory  and  agreed  that  the  11th  article  of  the  treaty  of  Guadalupe 
Hidalg-o  should  be  annulled,  and  that  the  United  States  should  be 
exonerated  from  all  claims  ])y  Mexico  or  Mexican  citizens,  whether 
on  account  of  the  alleged  failure  to  fulfill  the  obligations  of  the  llth 
article  of  the  treaty  of  Guadalupe  Hidalgo  or  on  other  accounts,  which 
miglit  have  arisen  since  the  date  of  that  treaty.  In  consideration  of 
tiiese  stipulations  the  United  States  agreed  to  pny  fifteen  millions  of 
dollars  and  further  ag-reed  to  assume  all  claims  of  United  States  citi- 
zens against  IVIexico  and  to  pay  them  to  the  extent  of  five  millions. 

•'But  the  Senate  of  the  United  States  altered  the  terms  of  this 
treaty,  and  the  amendments  proposed  by  that  body  were  accepted  by 
Mexico.  By  the  amended  treaty  Mexico  ceded  a  smaller  portion  of 
territory,  rehnised  the  United  States  from  all  liabilit}'  on  account  of 


462  soveeeignty:  its  acquisition  and  loss.         [§107. 

the  obligations  contained  in  the  11th  article  of  the  treaty  of  Guadalupe 
Hidalgo,  and  agreed  that  that  article  and  the  33rd  article  of  the  treaty 
of  the  5th  of  April  1831  should  be  annulled.  In  this  amended  treaty 
no  mention  is  made  of  the  miscellaneous  claims  of  Mexican  citizens 
against  the  United  States  nor  of  those  of  United  States  citizens  against 
Mexico. 

"In  consideration  of  these  stipulations,  i.  e.,  the  cession  of  a  smaller 
portion  of  territory,  the  release  of  the  United  States  from  all  liability 
on  account  of  the  obligations  contained  in  the  11th  article  of  the  treaty 
of  Guadalupe  Hidalgo,  and  the  repeal  of  that  article  and  of  the  33rd 
article  of  the  treaty  of  April  5th,  1831,  the  United  States  agreed  to 
pay  to  Mexico  the  sum  of  ten  millions  of  dollars." 

Sir  Edward  Thornton,  umpire,  ca.se  of  Rafael  Aguirre  v.  U.  S.,  No.  131,  Mex. 
Claims  Com.,  treaty  of  July  4,  1868,  Int.  Arbitrations,  III.  2-444;  see,  also, 
2430-2447;  Ex.  Docs.  31  Cong.  1  sess.,  I.  426;  S.  Docs.  33  Cong.  1  sess.,  I. 
256,  363,  434;  S.  Docs.  33  Cong.  2  sess.,  366-385. 

Article  XXXIII.  of  the  treaty  of  1831,  referred  to  by  Sir  Edward  Thornton, 
also  related  to  the  restraint  of  savage  tribes. 

Differences  had  also  arisen  between  the  two  countries  in  the  running  of  the 
boundary  mider  the  treaty  of  Guadalupe  Hidalgo.  These  differences 
involved  the  control  of  the  Mesilla  Valley,  and  as  incidents  of  this  the 
establishment  of  a  safe  frontier  against  the  Indians  and  of  a  feasil)ie  route 
for  a  railway  near  the  Gila  River.  Mr.  Ciadsden's  instructions  embraced 
both  the  boundary  question  and  that  of  the  Indian  depredation  claims. 
He  presented  his  credentials  August  17,  1853.  The  correspondence  was 
opened  by  Mr.  Bonilla  in  a  note  of  August  30,  1853,  in  relation  to  the 
depredation  claims.  Mr.  Gadsden  replied  on  the  9th  of  September.  See, 
further,  Mr.  Bonilla  to  Mr.  Gadsden,  October  18,  1853;  Mr.  Gadsden  to 
Mr.  Bonilla,  November  14  and  November  29,  1853;  General  Almonte, 
Mexican  minister  at  Washington,  to  Mr.  Marcy,  Secretary  of  State,  Octo- 
ber 22,  1853;  :\Ir.  ^Vlarcy  to  General  Almonte,  December  22,  1853.  After 
the  ratification  of  the  treaty  by  the  Senate  the  following  correspondence 
took  place:  General  Almonte  to  Mr.  Marcy,  ]\Iay  4,  June  21,  and  June  29, 
1854;  ]\Ir.  Marcy  to  General  Almonte,  May  5,  June  20,  and  June  24,  1854. 
(MSS.  Dept.  of  State.) 

Owing  to  the  uncertain  situation  of  affairs  at  the  time  in  Mexico,  it  was  deemed 
prudent  not  to  intrust  written  instructions  even  in  the  hands  of  a  special 
messenger,  and  Mr.  Samuel  Ward  was  sent  to  Mr.  (xadsden  with  oral 
instructions.  (Mr.  INIarcy,  Secretary  of  State,  to  Mr.  (ladsden,  No.  20 
(confidential),  January  6,  1854,  MS.  Inst.  Mexico,  XVI.  442.) 

8.  Alaska. 

S  107. 

Sept.  7,  1821,  the  Emperor  Alexander  of  Russia  issued  a  ukase  by 

which  he  gave  his  sanction  to  certain  regulations  of 

the    Russian-American  Company    respecting   foreign 

commerce  in  the  waters  ])ordering  on  its  establishments.     "From  the 

tenor  of  the  ukase,"'  said  Mr.  John  Quincv  Adams,  "the  pretentions 


§  107.] 


ALASKA.  463 


of  the  Imperial  Government  extend  to  an  exclusive  territorial  juris- 
diction from  the  forty-tifth  degree  of  north  latitude,  on  the  Asiatic 
coast,  to  the  latitude  of  fifty-one  north  on  the  western  coast  of  the 
American  continent;  and  they  assume  the  rijr-ht  of  interdicting  the 
navigation  and  the  fishery  of  all  other  nations  to  the  extent  of  one 
hundred  miles  from  the  whole  of  that  coast.  The  United  States  can 
admit  no  part  of  these  claims."  In  regard  to  territorial  claims,  Mr. 
Adams  said  that  the  right  of  the  United  States  from  the  forty- 
second  to  the  forty-ninth  parallel  of  north  latitude  on  the  Pacific  Ocean 
was  considered  unquestiona])le,  and  that  the  Oovernment  was  willing 
to  agree  to  55^  north  latitude  as  a  boundary  line." 

April  17  5,  1824,  Mr.  Middleton,  then  minister  of  the  United  States 
at  St.  Petersburg,  concluded  with  Count  Nesselrode  and  Mr.  Poletica, 
as  representatives  of  the  Russian  Government,  a  convention  by  which 
the  questions  between  the  two  Governments  as  to  territory  and  navi- 
gation were  adjusted.  By  the  first  three  articles,  which  were  perma- 
nent in  their  nature,  it  was  in  substance  provided  that  there  should  be 
no  interference  with  navigation  or  fishing,  or  with  resort  to  unoccupied 
coasts,  in  any  part  of  the  Pacific  Ocean,  and  that  the  dividing  line 
between  the  territorial  claims  of  the  United  States  and  Russia  on  the 
northwest  coast  of  America  should  be  the  parallel  of  54°  40'  north 
latitude.  Above  that  line  Russia  was  left  by  the  United  States  to 
contest  the  territory  with  Great  Britain;  below  it  the  United  States 
was  left  by  Russia  to  carrj-  on  a  similar  contention  with  the  same 
power.  The  subject  of  commercial  intercourse  was  adjusted,  tempo- 
raril}-,  by  Articles  lY.  and»V.  of  the  convention.  By  these  articles  it 
was  provided  that,  for  a  term  of  ten  years  from  the  date  of  the  signa- 
ture of  the  convention,  the  ships  of  both  powers  might  "reciprocally 
frequent,  without  an}^  hindrance  whatever,  the  interior  seas,  gulfs, 
harbors,  and  creeks"  on  the  northwest  coast  of  America  for  the  pur- 
pose of  fishing  and  of  trading  with  the  natives;  but  from  the  com- 
merce thus  permitted  it  was  stipulated  that  all  spirituous  liquors, 
firearms,  other  arms,  powder,  and  munitions  of  war  of  every  kind 
should  always  be  excepted,  each  of  the  contracting  parties  reserving 
to  itself  the  right  to  enforce  this  restriction  upon  its  own  citizens  or 
subjects.''  When  the  commercial  privilege  thus  secured  came  to  an 
end,  the  Russian  Government  refused  to  renew  it,  alleging  that  it  had 
been  abused.^  But  under  the  most-favored-nation  clause  contained  in 
Art.  XI.  of  the  treaty  of  connnerce  and  navigation  between  the  United 

"Mr.  Adams,  Sec.  of  State,  to  Mr.  Middleton,  niiii.  to  Russia,  .Tuly  22,  1828,  Am. 
State  Papers,  For.  Rel.  V.  436etseq. ;  Int.  Arbitrations,  I.  7H0. 

^  Am.  State  Papers,  For.  Rel.  V.  432—171,  contains  the  correspondence  relating  to 
the  convention. 

'S.  lOx.  Doc.  1,  25  C/Ong.  8  sess.  25-2t),  70;  Davis,  Notes,  Tri-aty  Volume  (1776- 
1887),  1380. 


464  SOVEKEIGNTY I    ITS    ACQUISITION    AND    LOSS.  [§  107. 

States  and  llussia  of  Dec.  18, 1832,  citizens  of  the  United  States  enjo^^ed 
on  the  Russian  coasts  the  same  privileges  of  commerce  as  were  secured 
by  treaty  to  British  subjects. 

Questions  between  Great  Britain  and  Russia,  growing  out  of  the 
ukase  of  1821,  were  adjusted  by  a  convention  between  those  powers, 
signed  at  St.  Petersburg  Feb.  28  16,  1825.  In  regard  to  the  rights  of 
navigation  and  tisliing,  and  of  landing  on  the  coasts,  its  provisions 
were  substantially  the  same  as  those  of  the  convention  between  Russia 
and  the  United  States.  It  also  defined  the  boundary  between  the  Brit- 
ish and  the  Russian  possessions.  As  to  commerce,  it  secured,  for  the 
space  of  ten  years,  the  enjoA'ment  of  substantially  the  same  privileges 
as  were  contained  in  the  convention  with  the  United  States.  These 
privileges  were  renewed  by  Art.  XII.  of  the  treaty  between  Great 
Britain  and  Russia  of  January  11,  1843. 

"All  the  territory  and  dominion"  possessed  by  His  Majesty  the 

Emperor  of  Russia  "on  the  continent  of  America  and 

the  adjacent  islands"  were  transferred  to  the  United 

States,  in  consideration  of  the  sum  of  $7,200,000,  by  the  treaty  signed 

at  Washington  March  30,  186T. 

The  treat}"  "was  communicated  to  Congress  on  the  6th  of  Jn\y, 
1867,  with  a  request  for  necessary  legislation."  The  steps  taken  in  the 
actual  transfer  of  the  ceded  territory  are  set  forth  in  the  President's 
message  of  flauuary  27,  1868.''  A  copy  of  the  treaty  of  cession,  and 
of  the  correspondence  relating  to  it,  and  other  correspondence,  with 
'Information  in  Relation  to  Russian  America,'  including  Mr.  Sum- 
ner's speech,  was  communicated  to  the  H*ouse  on  the  17th  of  Febru- 
ary, 1868.''  The  subject  of  the  appropriation  to  carry  out  this  treaty 
was  discussed  at  length  in  the  House.''  .  .  .  The  act  was  at  last 
passed  on  the  27th  of  July." 

Davis'js  Notes,  United  States  Treaty  Vol.  (1776-1887),  1380;  House  Report 
37,  40  Cong.  2  sess.;  15  Stats.  198. 

In  II.  Ex.  Doc.  177,  40  Cong.  2  sess.,  p.  12,  there  is  a  dispatch  to  Mr.  Seward 
from  Mr.  Cassius  M.  Clay,  then  minister  to  Russia,  May  10,  1867,  saying: 
"I  congratulate  you  upon  this  brilliant  achievement  which  adds  so  vast 
a  territory  to  our  T^nion;  .  .  .  My  attention  was  first  called  to  this 
matter  in  1863,  when  I  came  over  the  Atlantiir  witli  the  Hon.  Robert  J. 
Walker.  .  .  .  He  told  me  that  the  Emperor  Nicholas  was  willing  to 
give  us  Russian  America  if  we  would  cltjse  up  our  coast  possessions  to 
54°  40^.  But  the  slave  interest,  fearing  this  new  accession  of  '  free  soil,' 
yielded  the  i)oint  and  let  England  into  the  great  ocean." 


«S.  Ex.  Doc.  17,  40  Cong.  1  sess. 

''H.  Ex.  Doc.  125,  40  Cong.  2  sess.  This  document  contains  the  report  of  Gen. 
Rousseau,  who  was  sent  as  agent  to  receive  the  transfer  of  the  territory,  together  with 
the  schedules  and  agreements  of  the  commissioners  relating  to  such  transfer. 

'"H.  Ex.  Doc.  177,  40  Cong.  2  sess.,  parts  1  and  2. 

(t  Cong.  Globe,  40  (_ 'ong. ,  2  sess. 


§  107.]  ALASKA.  465 

At  page  46  of  the  same  document  there  is  an  article,  reprinted  from  the  New 
York  Herald  of  April  29,  1867,  in  which  it  is  stated  that  in  1854,  during 
the  Crimean  war,  the  Russian  Government,  through  Baron  Stoeckl,  for- 
mally proposed  the  sale  of  the  whole  of  Russian  America  to  the  United 
States. 

For  a  review  of  the  proceedings  in  Congress  on  the  passage  of  the  act  of  July 
27,  1868,  see  Magoon's  Reports,  151. 

For  recommendations  as  to  the  government  of  the  territory,  see  President 
McKinley's  first  and  third  annual  messages,  Dec.  6,  1897,  and  Dec.  5, 
1899. 

"My  serious  thoughts  about  acquiring  Russian  America  were 
effectively  reinforced  by  the  letter  which  you  wrote  nie  in  regard  to 
the  fisheries  of  that  region  in  January,  1866." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Joseph  L.  McDonald,  Steilacoom,  Pierce 
City,  Washington  Territory,  Aug.  26,  1867,  78  :MS.  Dom.  Let.  29. 

"In  your  letter  of  the  26th  ultimo  you  say  that  you  have  seen  it  stated  in  a 
Sitka  paper  that  'the  seven  miUion  that  we  were  supposed  to  have  i^aid 
for  Alaska  was  really  given  to  Russia  to  pay  the  expenses  of  her  friendly 
naval  demonstration  made  during  the  Civil  War  to  counteract  the  supposed 
hostile  intention  of  England  and  France;  that  Russia's  amour  propr«  for- 
bade her  to  receive  and  receipt  for  the  money  as  paid  for  the  above 
services,  but  she  ceded  to  ua  Alaska,  which  she  no  longer  wanted,  and  it 
Avas  made  to  appear  that  Alaska  was  bought  and  sold.'  You  desire  to  be 
informed  of  the  correctness  of  the  statements  as  you  expect  to  deliver  a 
lecture  on  the  subject  of  Alaska.  In  reply,  I  have  to  say  that  no  con- 
firmation of  these  statements  is  found  on  record  in  this  Department. 
Alaska  was  duly  paid  for  and  the  receipt  of  the  stipulated  payment 
acknowledged  by  Ru.ssia."  (]Mr.  Rives,  Assist.  Sec.  of  State,  to  Mr. 
Higbee,  Jan.  5,  1889,  171  MS.  Dom.  Let.  244.) 

See,  a.s  to  the  history  of  the  negotiations,  Scidmore's  Alaska,  201  et  seq.  This 
work  states  (p.  314)  that  the  Alaska  Commercial  Company,  from  1870  to 
1884,  paid  the  United  States,  under  its  lease  of  the  seal  islands,  $4,662,026, 
in  amounts  ranging  from  $262,500  to  $317,000  a  year. 

By  Art.  III.  of  the  treaty  of  cession,  the  inhabitants  are  guaranteed 
the  "free  enjoyment"  of  their  religion.  Under  this  stipidation,  "mem- 
bers of  the  Orthodox  Greek  Church  in  Alaska  enjoy  the  same  reli- 
gious freedom  as  do  members  of  other  religious  bodies.  Equality  of 
treatment  is  all  that  can  be  fairly  demanded,  the  treaty  does  not  bind 
the  United  States  to  more." 

Mr.  Adee,  Acting  Sec.  of  State,  to  Mr.  Breckinridge,  Nov.  3,  1894,  :\IS.  Inst. 

Russia,  XVII.  285;  Prince  Cantacuzene,  Russ.  min.,  to  Mr.  Gresham,  Sec. 

of  State,  April  3,  1894,  MSS.  Dept.  of  State;  Mr.  Gresham,  Sec.  of  State, 

to  Prince  Cantacuzene,  April  13,  1894,  MS.  Notes  to  Russia,  VIII.  46. 
See,  as  to  the  admission  of  certain  wines  for  the  Greek  churches  in  Alaska, 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Endicott,  March  17,  1885,  154  :MS.  Dom. 

Let.  511,  inclosing  copy  of  a  note  from  Mr.  de  Struve,  Russ.  min.,  of 

March  12,  1885. 

H.  Doc.  551 30 


466 


sovereignty:  its  acquisition  and  loss. 


[§  107. 


I\Ir.  Sherman,  Secretary  of  State,  in  a  note  to  the  Russian  legation  of  March 
11,  1897,  stated  that  the  agent  of  the  Treasury  Department  on  the  Pribiloff 
Islands  \vf)uld  be  instructed  to  permit  the  duly  accredited  representatives 
of  the  (Treek  Church  in  Alaska  to  land  on  those  islands  whenever  they 
might  so  desire,  subject  to  the  discontinuance  of  the  permission  whenever, 
in  the  judgment  of  the  resident  agent,  such  discontinuance  might  be 
necessary  to  the  ])est  interests  of  the  United  States  Government.  The 
captains  of  revenue  cutters  would  also  be  instructed  to  grant  them  free 
transportation  between  Unalaska  and  the  islands,  subject  to  the  free 
movement  of  the  vessels.  It  was  stated,  however,  that  the  Treasury 
Department  was  not  prepared  to  give  a  definite  answer  to  the  request  that 
the  priests  be  i)ermitled  to  teach  the  gospel  in  tlie  school  conducted  by  the 
North-American  Commercial  Company  under  its  contract  with  the  Treas- 
ury' Department,  on  Saturdays  and  Sundays,  if  not  on  other  days  in  the 
week.  (:Mr.  Sherman,  Sec.  of  State,  to  Mr.  de  Kotzebue,  March  11,  1897, 
For.  Rel.  1897,  48*>.  See,  also,  Mr.  Sherman,  Sec.  of  State,  to  Sec.  of  the 
Treasury,  Felj.  7,  1898,  225  MS.  Dom.  Let.  295. ) 

Of  the  territory  thus  ceded,  the  easterly  boundary,  as  established 
by  the  convention  between  Great  Britain  and  Russia 
of  Feb.  28  16,  1825,  and  therefrom  incorporated  into 

the  treat}'  of  cession,  is  (the  French  ])eing-  the  official  text,  of  which 

the  English  is  merely  a  translation)  as  follows: 

III.  The  line  of  demarcation  between 


Bonndaries. 


HI.  La  ligne  de  deinarration  entre  les 
Post^essionx  des  Hautes  Parties  Coutractante)^ 
sur  la  Cute  da  Continent  et  Jes  Ilea  de 
V Anieriquc  Nord  Quest,  sera  tracee  ainsi 
gu'il  suit:— 

A  jHirilr  da  Point  le  plus  meridional  de 
I' He  dite  Prince  of  Wales,  lequel  Point  se 
iroure  sous  la  parallHe  du  54^»''  defjre  40 
minutes  de  latitude  Nord,  et  entre  18 1""'  et 
le  l.'i.f'u'  degre  de  longitude  Guest  ( Meridien 
de  Greeniricli),  la  dite  ligne  retnontera  an, 
Nord  le  long  de  la  passe  dite  Portland 
Channel,  jusfju^tu  Point  de  la  terre  ferme 
oil  elle  (itteint  le  .'>''>>»(■  degre  de  latitude 
Nord:  de  ce  dernier  point  la  ligne  de 
demarcation  svlrra  la  crrte  des  montagnes 
sitnees  parallelenn'nt  a  la  Cote,  jusqu'au 
j)olnt  d'  Intersertnrn  du  14J""'  degre  de 
longitude  Onest  {nn'nie  Mcrldlen) ;  et,jinale- 
ment,  du  dit  jioinf  <r Intersection,  la  meme 
ligne  narldlenne  du  J4/"u-  degre  formera, 
dans  son  prolongenient  jusqu'd  la  mer 
Glaciate,  la  llinlle  entre  les  Possessions 
Pusses  et  Britannlques  snr  le  Continent  de 
V Anurique  Nord  Quest. 


the  Possessions  of  the  High  Contracting 
Parties  upon  the  Coast  of  the  Continent 
and  the  Islands  of  America  to  the  North- 
West,  shall  be  drawn  in  the  following 
manner: 

Commencing  from  the  southernmost 
point  of  the  Island  called  Prince  of  Wales 
Island,  which  point  lies  in  the  parallel  of 
54  degrees  40  minutes.  North  Latitude, 
and  between  the  131st  and  133d  Degree 
of  West  Longitude  (Meridian  of  Green- 
wich), the  said  line  shall  ascend  to  the 
Nortli  along  tlie  Channel  called  Portland 
Channel,  as  far  as  the  Point  of  the  Con- 
tinent where  it  strikes  the  56th  Degree 
of  North  Latitude;  from  this  last  men- 
tione<l  Point  the  line  of  demarcation 
shall  follow  the  summit  of  the  mountains 
situated  parallel  to  the  coast,  as  far  as 
the  point  of  intersection  of  the  141st 
Degree  of  West  Longitude  (of  tlie  same 
Meridian);  and,  finally,  from  the  said 
point  of  intersection,  the  said  Meridian 
Line  of  the  141st  Degree,  in  its  prolonga- 
tion as  far  as  the  Frozen  Ocean,  shall 
form  the  limit  l)etween  the  Russian  and 
British  Possessions  on  the  Continent  of 
America  to  the  North  West. 


§  107.]  ALASKA.  467 

IV.  II  est  entendu,  jmr  rapport  a  la  ligne  \       IV.  "With    reference    to    the    hue    of 


de   demarcation   determinee   dans    r Article 
precedent: 

1.  Que  Vile  dite  Prl)ice  of  Wales  apparti- 
endra  toute  entiere  a  La  Russie: 

2.  Que  partout  oh  la  crete  des  montagnes 
qui  s'etendent  dans  une  direction  parallele  a 
la  Cote  depuis  le  .56>'>''  degre  de  latitude 
Nord    au    point    d' intersection    du    141"'^ 


demarcation  laid  down  in  the  preceding 
Article,  it  is  understood: 

1st.  That  the  Island  calle.l  Prince  of 
Wales  Island  shall  belong  wholly  to 
Russia. 

2d.  That  wherever  the  summit  of  the 
mountains  which  extend  in  a  direction 
parallel  to  the  Coast,  from  the  56th 
degree  of  Xorth  Latitude  to  the  point  of 
degre  de  longitude  Ou^'st,  sed  trourerait  a  la  \  intersection  of  the  Hist  degree  of  West 
distance  de  plus  de  di.v  Ueues  marines  de  \  Longitude,  shall  prove  to  be  at  the  dis- 
r  Ocean,  la  lirnite  enfre  les  Possessions  tance  of  more  than  ten  marine  leagues 
Britanniques  et  la  lisiere  de  Cote  inentionee  :  from  the  Ocean,  the  limit  Ijetween  the 


ci-dessus  coinrne  deixint  appartenir  a  La 
Russie,  sera  forinee  par  une  ligne  parallele 
au.v  sinuosites  de  la  Cote,  et  qui  ne  pourra 
uonais  en  etre  eloignee   que  de   dix   lieues 


British  Possessions  and  the  line  of  Coast 
which  is  to  belong  to  Russia,  as  a})ove 
mentioned,  shall  be  formed  by  a  line 
parallel   to  the  windings  of   the   Coast, 


marines.  and  which  shall   never  exceed  the  dis- 

j  tance  of  ten  niarine  leagues  therefrom. « 

The  line  thus  established  has  not  been  surveyed  and  marked,  and, 
as  to  the  section  from  54^^  40'  to  Mount  St.  Elias,  there  is  a  contro- 
versy as  to  where  it  should  run.  Great  Britain,  construing,  accord- 
ing to  the  Canadian  contention,  the  word  ''coast'-  so  as  to  make  it 
applicable  to  the  adjacent  islands  rather  than  to  the  mainland,  has 
claimed  a  considerable  strip  of  territory  on  tidewater,  together  with 
numerous  islands,  in  whole  or  in  part.  The  United  States,  on  the 
contrary,  maintains  that  the  coast  whose  windings  the  line  is  to  follow 
is  the  coast  of  the  mainhmd,  and  that  the  ''lisiere  de  Cote"  is  a  con- 
tinuous strip  of  the  same  coast.  This  position  is  based  not  only  upon 
the  text  of  the  covention  of  1S25  but  also  tipon  authentic  historical 
facts.'' 

Bv  a  convention  of  July  22,  1892,  pi'ovision  was  made  for  the 
coincident  or  joint  survey,  as  might  be  found  convenient,  of  this  line. 
The  time  for  the  performance  of  the  work  was  extended  by  a  conven- 

«It  was  further  provided  by  the  British-Russian  convention  of  1825  (Art.  V.  )  tliat 
neither  party  should  form  establishments  within  the  limits  thus  assigned  to  the 
other,  and  specifically,  that  British  subjects  should  not  form  any  cstal)lislnnent, 
"either  upon  the  coast,  or  upon  the  border  of  tlie  continent  (.so//  sur  la  cote,  suit  .^vr 
la  lisiere  de  terre  ferine)  comprised  within  the  limits  of  the  Russian  possessions." 

'^The  Alaskan  Boundary,  by  Hon.  John  W.  Foster,  National  (ieographic  ]Mag.,  X. 
425;  the  Ala.«ko-Canadian  Frontier,  by  Thomas  Willing  Balch  (Philadel]>liia:  Allen, 
Lane  &  Scott,  1902);  the  Alaskan  Boundary,  by  J.  B.  Moore,  N.  Am.  Rev.,  vol. 
169,  p.  501.  Correspondence,  previously  unpublished,  showing  incidentally  the 
mutual  understanding  of  Great  Britain  and  Russia  as  to  the  line  in  the  treaty  of  1825, 
was  disclosed  in  1893,  among  the  papers  accompanying  the  British  case  before  the 
tribunal  of  arbitration  at  Paris.  (Fur  Seal  Arbitration,  American  reprint,  IV.  365- 
449.)  See,  also.  Report  of  the  Select  Conunittee  on  the  Hudson's  Bay  Company, 
1857,  pp.  140,  1391. 


468  sovekeignty:  its  acquisition  and  loss.  [§  107. 

tion  of  Feb.  '^,  18'J-±,  till  Dec.  31,  1895.  Surveys  and  reports  were 
duly  made." 

By  an  exchange  of  notes  October  20,  1899,  by  Mr.  Ha3',  Secretary 
of  State,  and  Mr.  Tower,  British  charge  at  Washington,  a  provisional 
boundary  was  established  about  the  head  of  Lynn  Canal,  as  follows: 

'■  It  is  hereby  agreed  between  the  Governments  of  the  United  States 
and  of  Great  Britain  that  the  boundary  line  between  Canada  and  the 
territory  of  Alaska  in  the  region  about  the  head  of  Lynn  Canal  shall 
be  provisionally  fixed  as  follows  without  prejudice  to  the  claims  of 
either  party  in  the  permanent  adjustment  of  the  international 
boundary: 

"In  the  region  of  the  Dalton  Trail,  a  line  beginning  at  the  peak 
west  of  Porcupine  Creek,  marked  on  the  map  No.  1(J  of  the  United 
States  Conmiission,  December  31.  1895,  and  on  sheet  No.  18  of  the 
British  Commission,  December  31,  1895,  with  the  number  6500;  thence 
running  to  the  Klehini  (or  Klaheela)  River  in  the  direction  of  the 
peak  north  of  that  river,  marked  5<)2(»  on  the  aforesaid  United  States 
map  and  5(>25  on  the  aforesaid  British  map:  thence  following  the  high 
or  right  bank  of  the  said  Klehini  River  to  the  junction  thereof  with 
the  Chilkat  River,  a  mile  and  a  half,  more  or  less,  north  of  Klukwan; 
provided  that  persons  proceeding  to  or  from  Porcupine  Creek  shall 
be  freely  permitted  to  follow  the  trail  between  the  said  creek  and  the 
said  junction  of  the  rivers,  into  and  across  the  territory  on  the  Cana- 
dian side  of  the  temporary  line  wherever  the  trail  crosses  to  such  side, 
and.  subject  to  such  reasonable  regulations  for  the  protection  of  the 
revenue  as  the  Canadian  Government  may  prescribe,  to  carr^'  with 
them  over  such  part  or  parts  of  the  trail  between  the  said  points  as 
may  lie  on  the  Canadian  side  of  the  temporary  line,  such  goods  and 
articles  as  they  desire,  without  being  recjuired  to  pay  any  customs 
duties  on  such  goods  and  articles;  and  from  said  junction  to  the  sum- 
mit of  the  peak  east  of  the  Chilkat  River,  marked  on  the  aforesaid 
map  No.  1(1  of  the  United  States  Commission  with  the  number  5410 
and  on  the  map  No.  IT  of  the  aforesaid  British  Commission  with  the 
nunii)er  5490. 

*•  On  the  Dyea  and  Skagway  trails,  the  summits  of  the  Chilcoot  and 
White  passes. 

'•It  is  understood,  as  formerly  set  forth  in  communications  of  the 
Department  of  State  of  the  United  States,  that  the  citizens  or  subjects 

«Mr.  Adee,  Acting  8ef.  of  State,  to  Mr.  Underwood,  Aug.  3,  1897,  220  MS.  Dom. 
Let.  56.  The  following  documents,  profusely  illustrated  with  maps,  relate  to  this 
part  of  the  boundary:  S.  Ex.  Doc.  14:3,  49  Cong.  1  sess. ;  S.  Ex.  Doc.  146,  50  Cong. 
2  sess. 

A  treaty  was  signed  Jan.  'AO,  1897,  for  marking  that  part  of  the  boundary  which 
follows  the  141st  meridian  from  Mt.  St.  Klias  to  the  F"rozen  Ocean,  but  it  has 
remained  unratified.  (Mr.  Adee,  Acting  Sec.  of  State,  to  Mr.  Underwood,  Aug.  3, 
1897,  220  MS.  Dom.  Let.  56.) 


§  10'^-]  ALASKA.  469 

of  either  Power,  found  by  this  arnincroinent  within  the  temporary 
jurisdiction  of  the  other,  shall  sutier  no  diminution  of  the  rights  and 
privileges  which  they  now  enjoy. 

"The  Government  of  the  United  States  will  at  once  appoint  an 
officer  or  officers  in  conjunction  with  an  officei'  or  officers  to  l)e  named 
by  the  Government  of  Her  Britannic  .Majesty,  to  mark  the  temporary 
line  agreed  upon  bv  the  erection  of  posts,  stakes,  or  other  appropriate 
temporary'  marks." 

For  the  correspondence  relating  to  the  conchision  of  thin  agreement,  see  For. 
Rel.  1899,  320-332. 

"The  President  has  referred  to  me.  after  acknowledgment  in  regular 
course,  3'our  letter  of  the  11th  ultimo,  with  which  was  enclosed  a  pro- 
test of  the  miners  of  the  Porcupine  mining  district  of  Alaska  against 
the  provisional  demarcation  of  the  boundary  in  the  vicinity  of  the 
Kleheni  Kiver.  which  has  been  recently  made  in  virtue  of  the  modus 
vivendi  concluded  on  the  :20th  of  October  last. 

"The  arguments  and  statements  presented  in  the  petition  with  great 
clearness  were  fullv  understood  here,  and  the  circumstance  that  the 
negotiation  of  a  modus  was  prolonged  for  some  two  years  before  an 
agreement  was  reached  was  due  to  the  insistence  of  this  Government 
that  no  solution  was  admissi])le  which  should  not  recognize  and  guard 
all  rights  and  privileges  gained  by  the  American  miners  and  other 
citizens  who  had  settled  in  the  disputed  territory.  This  position  was 
assumed  very  early  in  the  negotiation,  after  consultation  with  repre- 
sentative Senators  and  Congressmen,  especially  from  the  Pacific  and 
Northwestern  States,  and  it  was  well  understood  that  our  demand  that 
the  American  citizens  who.  by  the  operation  of  any  provisional  arrange- 
ment might  be  found  within  the  temporary  jurisdiction  of  Great  Brit- 
ain, should  suffer  no  diminution  of  their  existing  rights,  was  an  essential 
condition  from  which  no  recession  was  possible.  The  other  details  of 
the  arrangement  were  in  like  manner  the  subject  of  constant  consulta- 
tion with  the  best  informed  representative  authorities,  throughout 
the  negotiation,  and  were  generally  and  fully  acquiesced  in.  Avith  a 
clear  realization  of  the  fact  that  a  settlement  of  the  character  sought 
to  be  reached  was  necessarily  a  t(Mnpoi"ary  compromise,  involving 
mutual  concessions,  although  without  prejudice  to  the  com])h»te  estab- 
lishment of  the  rights  of  either  party  in  the  eventual  i)ermanent 
adjustment  of  the  treaty  boundary, 

"I  enclose  for  your  information  a  copy  of  the  modus  vivendi  of 
October  2(J,  18'.M>.     I  })eg  you  to  observe: 

"First:  That  the  arrangement  is  provisional  merely  and  without 
prejudice  to  the  claims  of  either  party  in  the  permanent  adjustment 
of  the  international  boundary. 

"Second:  That  the  inconvenience  of  a  provisional  line  crossing  and 
recrossing  the  shifting  water-wa}"  was  foreseen  and  expressly  provided 


470  SOVEKEIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  107. 

for  b}'  the  engagement  '  that  persons  proceeding  to  or  from  Porcupine 
Creek  shall  be  freely  permitted  to  follow  the  trail  between  the  said 
creek  and  the  said  junction  of  the  rivers  (Klehini  and  Chilkat)  into  and 
across  the  territory  on  the  Canadian  side  of  the  temporary  line  when- 
ever the  trail  crosses  to  such  side,  and,  su])ject  to  such  reasonable  reg- 
ulations for  the  protection  of  the  Revenue  as  the  Canadian  Government 
ma}'  prescribe,  to  carr}'  with  them  over  such  part  or  parts  of  the  trail 
between  the  said  points  as  may  lie  on  the  Canadian  side  of  the  tempo- 
rary line,  such  goods  and  articles  as  the}'  desire,  without  being 
required  to  pay  any  customs  duties  on  such  goods  and  articles.' 

"Thirdly  (and  most  importantly  in  its  relation  to  the  grounds  of  your 
protest):  That  it  is  stipulated  'that  the  citizens  or  su})jccts  of  either 
Power,  found  by  this  arrangement  within  the  temporar}'  jurisdiction 
of  the  other,  shall  suffer  no  diminution  of  the  rights  and  privileges 
which  they  now  enjoy.' 

"The  provisional  arrangement  so  entered  into  by  the  United  States 
and  Great  Britain  was  made  public  in  October  last,  so  that  its  provi- 
sions became  widely  known  to  all  parties  interested,  affording  ample 
opportunity'  to  foresee  its  effects  when  the  officers  of  the  two  Govern- 
ments should  have  completed  the  mechanical  operation  of  marking  the 
temporary  line  agreed  upon  l)y  the  erection  of  posts,  stakes,  or  other 
appropriate  temporary  marks.  To  enable  a  full  understanding  in 
these  particulars,  the  published  copies  of  the  modus  vivendi  were 
accompanied  l)y  a  map,  carefully  prepared  from  the  latest  and  most 
authentic  sources.  The  arrangement  and  the  map  were  printed  in 
nearh'  all  the  newspapers  at  the  time,  constituting  an  abundant  public 
notiffcation.  It  would  seem,  therefore,  that  the  recent  action  of  the 
surve3-ors  named  by  the  two  Governments  in  setting  up  the  prescribed 
marks  can  not  ])e  deemed  a  surprise.  Neither  does  their  action  involve 
any  new  procedure  or  compromise  amounting  to  an  alteration  of  the 
engagement  entered  into  in  October  last.  The  surveyors  had  no  discre- 
tionary powers  as  to  the  subject-matter  of  the  l)oundary  dispute,  their 
sole  function  l)eing  to  mark,  upon  the  surface  of  the  ground,  the  pro- 
visional line  upon  which  the  two  Governments  had  reached  a  compro- 
mise for  the  time  ])eing. 

"Th(>  rights  of  the  United  States  in  the  matter  of  the  treaty  bound- 
ary are  absolutely  intact,  and  their  assertion  in  due  time  will  be 
earnest  and  thorough.  In  the  meantim(\  this  Government  foregoes  no 
part  of  its  riglit  and  power  to  protect  its  citizens  in  the  Porcupine 
Creek  region,  whether  they  ])e  tempoi-arily  within  American  or  British 
jurisdiction,  in  the  full  enjoyment  of  all  rights  and  privileges  which 
they  had  before  the  modus  was  concluded,  and  to  see  that  their  free- 
dom of  access  and  exit,  with  their  goods,  is  not  unreasonably  impeded."" 

^Ir.  Hay,  Sec.  of  State,  to  Mr.  Emmons,  cliairman  of  a  committee  of  miners, 
rorcui)ine  miniiifj:  district,  Alaska,  August  3,  1900,  246  MS.  Dom.  Letters, 
672;  For.  Rel.  1899,  331. 


107.]  ALASKA.  471 

See,  also,  Mr.  Adee,  Acting  Sec.  of  State,  to  .Mr.  Fitzpatrick,  Sept.  10,  1900, 
247  MS.  Doin.  Let.  564;  :\lr.  Ilay,  Sec.  of  State,  to  Mr.  Sliattuck,  Oct.  4, 
1900,  248  MS.  Dom.  Let.  281. 

As  to  customs  regulations,  see  Mr.  Day,  Assist.  Sec.  of  State,  to  the  Sec.  of  the 
treasury,  Marcli  21,  1898,  22(i  MS.  Doin.  Let.  o79;  Mr.  Mf)ore,  Acting 
Sec.  of  State,  to  the  Sec.  of  the  Trea.sury,  April  28,  1898,  228  MS.  Dom. 
Let.  107. 

As  to  postal  regulations,  see  Mr.  Hay,  Sec.  of  State,  to  the  Postmaster-General, 
March  15,  1900,  248  MS.  Dom.  Let.  618. 

As  to  regulations  concerning  the  issuance  of  miners'  certificates  in  the  Xorth- 
West  Territory,  see  note  of  British  aml)assador  of  April  25,  1898,  MS. 
Notes  from  Great  Britain. 

The  following  official  utterances  and  documents  in  relation  to  the  boundary 
question  may  be  (nted : 

"The  frontier  line  between  Alaska  and  British  Columbia,  as  defined  by  the 
treaty  of  cession  with  Russia,  follows  the  deniarkation  assigned  in  a  prior 
treaty  between  ( Ireat  Britain  and  Russia.  ]\Iodern  exploration  disclosesthat 
this  ancient  boundary  is  impracticable  as  a  geographical  fact.  In  the 
unsettled  condition  of  that  region  the  question  has  lacked  importance,  but 
the  discovery  of  mineral  wealth  in  the  territory  the  line  is  supposed  to 
traverse  admonishes  that  the  time  has  come  when  an  accurate  knowledge 
of  the  boundary  is  needful  to  avert  jurisdictional  complications.  I  recom- 
mend, therefore,  that  provision  be  made.for  a  preliminary  reconnoissance 
by  officers  of  the  United  States,  to  the  end  of  ac(juiring  more  precise  infor- 
mation on  the  subject.  I  have  invited  ller  Majesty's  Government  to  con- 
sider with  us  the  adoption  of  a  more  convenient  line,  to  be  established  by 
meridian  observations  or  by  known  geographical  features  without  the 
necessity  of  an  expensive  survey  of  the  whole."  (President  Cleveland, 
annual  message,  Dec.  8,  1885. ) 

"The  recommendation,  submitted  last  year,  that  provision  be  made  for  a  pre- 
liminary reconnoissance  of  the  conventional  boundary  line  between  Alaska 
and  British  Columbia  is  renewed."  (President  Cleveland,  annual  mes- 
sage, Dec.  rt,  1 886. ) 

"The  coastal  1)oundary  between  our  Alaskan  possessions  and  British  Columbia, 
I  regret  to  say,  has  not  received  the  attention  demanded  by  its  importance, 
and  which  on  several  occasions  heretofore  I  have  had  the  honor  to  recom- 
mend to  the  Congress. 

"The  admitted  impracticability,  if  not  inqxjssibility,  of  making  an  accurate 
and  precise  survey  and  demarkation  of  the  boundary  line,  as  it  is  recited 
in  the  treaty  with  Russia  under  which  Alaska  was  ceded  to  the  United 
States,  renders  it  absolutely  requisite,  for  tb.e  prevention  of  international 
jurisdictional  complications,  that  adequate  appropriation  for  a  recon- 
noisance  an<l  survey  to  obtain  j)roper  knowU'dgc  of  the  locality  and  the 
geographical  features  of  the  l)oundary  should  be  authorized  by  Congress 
with  as  littie^delay  as  possible. 

"Knowledge  to  be  only  thus  obtained  is  an  essential  prerequisite  for  negotia- 
tion for  ascertaining  a  common  boundary,  or  as  i>reliminary  to  any  other 
mode  of  settlement."  (l^resident  Cleveland,  animal  message,  Dec.  8, 
1888.) 

"  Provision  should  1)e  made  for  a  joint  demarcation  of  the  frontier  line  between 
Canada  and  the  United  States,  wherever  re(iuired  by  tlie  increasing  bor- 
der settlements,  and  especially  for  the  exact  location  of  the  water  bound- 
ary in  the  straits  and  rivers."  (President  Harrison,  animal  message,  Dec. 
9,  1891.) 


472  sovereignty:  its  acquisition  and  loss.         [§  107. 

"  Preliminary  surveys  of  the  Alaskan  boundary  .  .  .  are  in  progress. "  (Presi- 
(ient  Cleveland,  annual  message.,  Dec.  3,  1894.) 

In  a  note  of  August  20,  1895,  Lord  Gough,  British  charge,  stated  that  Mr.  Wil- 
liam Ogilvie,  who  in  1887-88  conducted  a  survey  of  the  country  drained 
by  the  Yukon  River  and  determined  the  point  of  intersection  of  the  one 
hundred  and  forty-first  meridian  of  longitude  and  the  Yukon  River,  had 
been  instructed  to  proceed  with  the  determination  of  that  meridian  with 
all  convenient  speed.  It  was  suggested  that  the  United  States  either 
appoint  a  surveyor  to  act  generally  with  Mr.  Ogilvie,  or  that  the  demar- 
cation of  the  line,  which  would  te  made  on  the  ground  by  Mr.  Ogilvie, 
should  be  provisionally  recognized  by  both  countries  without  prejudice  to 
what  might  be  determined  by  a  joint  delimitation.  It  was  stated  that  a 
precedent  for  this  second  alternative  occurred  in  1877,  when  the  boundary 
between  the  two  countries  on  the  Stikine  Riveras  surveyed  by  a  Canadian 
officer,  Mr.  Joseph  Hunter,  was  accepted  by  both  countries  on  similar 
conditions.  It  was  suggested  that  if  the  second  alternative  should  be 
adopted  the  United  States  might  be  willing  to  share  the  cost  of  the  pre- 
liminary survey.  The  United  States  suggested  that  the  propo.sed  survey 
1)e  delayed  until  after  Congress  had  had  an  opportunity  to  act  upon  the 
proposal  for  a  joint  survey  and  to  make  an  appropriation  therefor.  (For. 
Rel.  1895,  I.  72.3-724.) 

"The  completion  of  the  preliminary  survey  of  that  Alaskan  boundary  which 
follows  the  contour  of  the  coast  from  the  southernmost  point  of  Prince  of 
Wales  Island  until  it  strikes  the  one  hundred  and  forty-first  meridian  at 
or  near  the  summit  of  Mount  St.  Elias  awaits  further  necessary  appropria- 
tion, which  is  urgently  recommended.  This  survey  was  undertaken  under 
the  provisions  of  the  convention  entered  into  by  this  country  and  Great 
Britain  July  22,  1892,  and  the  supplementary  convention  of  February  3, 
1894. 

"  As  to  the  remaining  section  of  the  Alaskan  boundary,  which  follows  the  one 
hundred  and  forty-first  meridian  northwardly  from  Mount  St.  Elias  to 
the  Frozen  Ocean,  the  settlement  of  which  involves  the  physical  location 
of  the  meridian  mentioned,  no  conventional  agreement  has  yet  teen  made. 
The  a.scertainment  of  a  given  meridian  at  a  particular  point  is  a  work 
requiring  nuich  time  and  careful  observations  and  surveys.  Such  obser- 
vations and  surveys  were  undertaken  ])y  the  United  States  Coast  and 
Geodetic  Survey  in  1890  and  1891,  while  similar  work  in  the  same  quar- 
ters under  British  auspices  are  l)elieved  to  give  nearly  coincident  results; 
but  these  surveys  have  been  independently  conducted  and  no  interna- 
tional agreement  to  mark  those  or  any  other  ]>arts  of  the  one  hundred  and 
forty-first  meridian  by  permanent  monuments  has  yet  been  made.  In  the 
meantime  the  valley  of  the  Yukon  is  becoming  a  highway  through  the 
hitherto  unexplored  wilds  of  Alaska,  and  abundant  mineral  wealth  has 
been  discovered  in  that  region,  especially  at  or  near  the  junction  of  the 
boundary  meridian  with  the  Yukon  and  its  tributaries.  In  these  circum- 
stances it  is  expedient,  and,  indeed,  imperative,  that  the  jurisdictional 
limits  of  the  resi)ective  (Tovernments  in  this  new  region  be  speedily  deter- 
mined. Her  Britannic  ^Majesty's  Government  has  proposed  a  joint  delimi- 
tation of  the  one  hundred  and  forty-first  meridian  by  an  international 
commission  of  experts,  which,  if  Congress  will  authorize  it  and  make  due 
provision  therefor,  can  be  accomplished  with  no  unreasonable  delay.  It 
is  impossiVile  to  overlook  the  vital  importance  of  continuing  the  work 
already  entered  upon,  and  supplementing  it  by  further  effective  measures 
looking  to  the  exact  location  of  this  entire  boundary  line."  (President 
Cleveland,  annual  message,  Dec.  2,  1895.) 


§  lO'''-]  ,  ALASKA.  473 

"The  undersigned,  Secretary  of  State,  to  whom  was  referred  on  the  Htli  ultimo 
a  resoUition  of  the  Senate,  in  the  following  terms: 

"  '  Ix  THE  Senate  ok  the  I'xited  States, 

' '  '  December  18,  1895. 

^^' Resolved,  That  the  President  is  requested,  if  not  incompatible  with  the 
public  interests,  to  communicate  to  the  Senate  all  diplomatic  correspond- 
ence and  other  information  ofhcially  possessed  by  this  Government, 
respecting  the  establishment  or  attempt  to  establish  post  routes  by  Great 
Britain  or  the  Dominion  of  Canada  over  or  upon  United  States  territory 
in  Alaska;  also  respecting  the  occupation  or  attempted  occupation  by  any 
other  means  of  any  portion  of  such  territory  by  the  military  or  civil 
authorities  of  Great  Britain  or  the  Dominion  of  Canada;  also  respecting 
any  other  attempt  by  Great  Britain  or  the  Dominion  of  Canada  to  assert 
any  claims  to  territory  of  the  United  States  in  Alaska  '— 

"  Has  the  honor  to  report  as  follows: 

"The  Department  of  State  is  not  officially  possessed  of  any  diplomatic  corre- 
spondence or  other  information  respecting  the  establishment  of,  or  any 
attempt  to  establish,  post  routes  by  Great  Britain  or  the  Dominion  of 
Canada  over  or  upon  United  States  territory  in  Alaska. 

"  Deeming  it  possible  that  the  Postmaster-General  might  be  able  to  impart 
some  information  touching  this  particular  feature  of  the  Senate's  inquiry, 
I  addressed  a  letter  to  Mr.  Wilson  on  the  subject.  I  inclose  a  copy  of  his 
reply,  of  January  31,  1896,  from  which  it  appears  that  one  round  trip  by 
carrier  was  contemplated  from  Victoria,  British  Columbia,  via  Juneau, 
Alaska,  to  Fort  Cudahy. 

"The  Department  of  State  is  not  officially  possessed  of  any  authentic  corre- 
spondence or  other  information  respecting  any  occupation  or  attempted 
occupation,  by  other  means  than  the  establishment  of  post  routes,  of  any 
portion  of  United  States  territory  in  Alaska  l)y  the  militaiy  or  civil  author- 
ities of  Great  Britain  or  the  Dominion  of  Canada.  The  only  diplomatic 
correspondence  on  file  having  even  a  remote  relation  to  this  branch  of  the 
Senate's  inquiry  was  exchanged  in  June,  1895,  when,  at  the  instance  of 
the  Governor-General  of  Canada,  the  British  ambassador  at  this  capital 
asked  that  customs  facilities  be  accorded  a  detachment  of  twenty  mounted 
police  en  route  for  the  Canadian  section  of  the  Yukon  country,  passing  to 
its  destination  by  way  of  Seattle,  in  the  State  of  Washington,  and  St. 
Michaels,  Alaska,  and  thence  ascending  the  Yukon  River  to  the  boundary. 
The  desired  facilities  were  promptly  accorded  by  the  Secretary  of  the 
Treasury,  and  the  British  ambassador  was  so  informed.  Copies  of  the 
correspondence  in  question  are  appended. 

"The  Department  of  State  is  not  officially  possessed  of  any  diplomatic  cor- 
respondence or  other  information  respecting  any  other  attempt  of  Great 
Britain  or  the  Dominion  of  Canada  to  assert  any  claims  to  territory  of  the 
United  States  in  Alaska,  either  by  occupation  or  attempt  to  occupy  such 
territory  or  otherwise."  (Report  of  ]\Ir.  Olney,  Sec.  of  State,  to  the  IVes- 
ident,  Feb.  10,  1896,  accompanying  the  message  of  the  President  to  the 
Senate  of  the  same  date,  S.  Doc.  112,  54  Cong.  1  sess. ;  For.  Rel.  1895,  I. 
577. ) 

In  For.  Rel.  1896,  289-293,  there  is  a  correspondence  concerning  the  delimita- 
tion of  the  one  hundred  and  forty-tlrst  meridian  between  Alaska  and  the 
British-Canadian  territory. 

"A  proposal  for  the  immediate  location  of  the  Alaskan  boundary  line  along 
the  one  hundred  and  forty-first  meridian  l)y  setting  international  monu- 
ments thereon  at  or  between  convenient  points  already  determined  by 


474  sovereignty:  its  acquisition^  and  loss.         [§  107. 

independent  American  and  Canadian  surveys,  and  by  continuing  its 
demarcation  by  joint  survey,  having  ]>een  accepted,  negotiations  are  in 
progress  toward  a  convention  with  Great  Britain  or  the  oi^anization  of  an 
international  survey  commission,  as  contemplated  by  the  act  approved 
February  20,  1896. 

"The  prospects  of  innnediate  negotiations  for  the  precise  demarcation  of  the 
coastwise  Alaskan  boundary  are  good.  The  preliminary  survey  of  that 
region  under  the  convention  with  Great  Britain  of  July  22,  1892,  was  com- 
pleted within  the  stipulated  time,  and,  having  before  them  the  necessary 
topographical  data,  the  two  Governments  are  now  in  a  position  to  con- 
sider and  establish  the  boundary  line  in  question  according  to  the  facts  and 
agreeably  to  the  true  purpose  of  the  treaties  between  Great  Britain  and 
Russia,  and  between  Ru.ssia  and  the  United  States,  whereby  it  is  de- 
scribed." (Report  of  ^Ir.  Olney,  Sec.  of  State,  to  the  President,  Dec.  7, 
1896;  For.  Rel.  1896,  Ixxiv.) 

"  In  my  last  annual  message  I  referred  to  the  pending  negotiations  with  Great 
Britain  in  respect  to  the  Dominion  of  Canada.  By  means  of  an  executive 
agreement  a  Joint  High  Commission  had  been  created  for  the  purpose  of 
adjusting  all  unsettled  questions  between  the  United  States  and  Canada, 
embracing  twelve  subjects,  among  which  were  the  questions  of  the  fur 
seals,  the  fisheries  of  the  coast  and  contiguous  inland  waters,  the  Alaskan 
boundary,  the  transit  of  merchandi.<e  in  Vxjnd,  the  alien  lalx)r  laws,  mining 
rights,  reciprocity  in  vrade,  revision  of  the  agreement  respecting  naval 
ves.sels  in  the  Great  Lakes,  a  more  comj^lete  marking  of  parts  of  the 
Ijoundary,  provision  for  the  conveyance  of  criminals,  and  for  wrecking 
and  salvage. 

"  Much  progress  had  been  made  by  the  Commission  toward  the  adjustment  of 
many  of  these  questions,  when  it  became  apparent  that  an  irreconcilaljle 
difference  of  views  was  entertained  respecting  the  delimitation  of  the 
Alaskan  l)oundary.  In  the  failure  of  an  agreement  as  to  the  meaning  of 
articles  3  and  4  of  the  treaty  of  1825  l)etween  Russia  and  Great  Britain, 
which  defined  the  boundary  ])etween  Alaska  and  Canada,  the  American 
Commissioners  proposed  that  the  subject  of  the  boundary  be  laid  a«ide  and 
that  the  remaining  questions  of  difference  l)e  proceeded  with,  some  of 
which  were  so  far  advanced  as  to  assure  the  probability  of  a  settlement. 
This  being  declined  by  the  British  Commissioners,  an  adjournment  was 
taken  until  the  boundary  should  be  adjusted  by  the  two  Governments. 
The  subject  has  l)een  receiving  the  careful  attention  which  its  importance 
demands,  with  the  result  that  a  modus  viren/li  for  provisional  demarcations 
in  tlie  region  about  the  head  of  Lynn  Canal  has  been  agreed  upon;  and  it  is 
hoped  that  the  negotiations  now  in  progress  between  the  two  Govermnents 
will  end  in  an  agreement  for  the  establishment  and  delimitation  of  a  per- 
manent l)oundary."     ( President  McKinley,  annual  message,  Dec.  5,  1899. ) 

"The  work  of  marking  certain  provisional  boundary  points,  for  convenience 
of  administration,  around  the  head  of  Lynn  Canal,  in  accordance  with 
the  temiKjrary  arrangement  of  Octolier.  1S99,  was  completed  by  a  joint 
survey  in  July  la.«t.  The  modus  rlnndi  has  so  far  worked  without  friction, 
and  the  Dominion  Government  has  ])rovided  rules  and  regulations  for 
.securing  to  our  citizens  the  benefit  of  the  reciprocal  stipulation  that  the 
citizens  or  sultjects  of  either  jxiwer  found  by  that  arrangement  within  the 
temporary  jurisdiction  of  the  other  shall  suffer  no  diminution  of  the  rights 
and  i)rivileges  they  have  hitherto  enjoyed.  But  however  necessary  such 
an  ex])edient  may  have  been  to  tide  over  the  grave  emergencies  of  the 
situation,  it  is  at  best  but  an  unsatisfactory  makeshift,  which  should  not 


§  10^-]  HAWAIIAN    ISLANDS.  475 

be  suffered  to  delay  the  speedy  and  complete  establishment  of  the  frontier 
line  to  w-liich  we  are  entitled  under  the  Russo-American  treaty  for  the 
cession  of  Alaska. 

"In  this  relation  I  may  refer  again  to  the  need  of  definitely  marking  the 
Alaskan  boundary  where  it  follows  the  one  hundred  and  forty-first 
meridian.  A  convention  to  that  end  has  l)een  before  the  Senate  for  some 
two  years,  but  as  no  action  lias  been  taken  I  contemplate  negotiating  a 
new  convention  for  a  joint  determination  of  the  meridian  by  telegraphic 
observations.  These,  it  is  believed,  will  give  more  accurate  and  unques- 
tionable results  than  the  sidereal  methods  heretofore  independently  fol- 
lowed, which,  as  is  known,  proved  discrepant  at  several  points  on  the 
line,  although  not  varying  at  any  place  more  than  700  feet."  (President 
McKinley,  annual  message,  Dec.  3,  1900.) 

Mr.  Hay,  Secretary  of  State,  in  a  report  of  April  24,  1902,  as  to  alleged  sur- 
veys and  encroachments  by  British  and  Canadian  officials  on  Amerit'an 
territory  near  the  border,  stated  that  investigation  of  the  allegations  would 
be  continued  till  the  truth  was  ascertained.  (H.  Doc.  576,  57  Cong.  1 
se.ss.) 

See  Mr.  Hay,  Sec.  of  State,  to  ]Mr.  Ghoate,  amb.  to  England,  June  23,  1899, 
MS.  Inst.  Cr.  Brit.  XXXIII.  201. 

The  western  boundarv  of  Ala.ska,  as  detined  in  the  treat}'  of  cession 
(Art.  I.),  takes  as  a  place  of  beginnino-  '-a  point  in  Bering's  Straits  on 
the  parallel  of  65  30'  north  latitude,  at  its  intersection  by  the  meridian 
which  pa.s.ses  midway'  between  the  islands  of  Kritsenstern  or  Ignalook 
and  the  island  of  Ratmanoft'  or  Xoonarbook."  From  this  point  the 
line  in  its  upward  course  "' proceeds  due  north,  without  limitation," 
into  the  "Frozen  Ocean;"  and,  in  its  downward  course,  " beg'inning at 
the  .same  initial  point,  proceeds  thence  in  a  course  nearly  southwest 
through  Bering's  Straits  and  Bering's  Sea,  so  as  to  pass  midway  between 
the  northwest  point  of  the  island  of  St.  Lawrence  and  the  southeast 
point  of  Cape  Choukotski  to  the  meridian  of  one  hundred  and  sevent}'- 
two  west  longitude;  thence  from  the  intersection  of  that  meridian  in  a 
southwesterly  direction,  so  as  to  pass  midway  between  the  island  of 
Attou  and  the  Copper  Island  of  the  Kormandorski  couplet  or  group, 
in  the  North  Pacific  Ocean,  to  the  meridian  of  one  hundred  and  ninety- 
three  degrees  west  longitude,  so  as  to  include  in  the  territory  conve3'ed 
the  whole  of  the  Aleutian  Islands  east  of  that  meridian." 

!t.    Hawaiian   Islands. 
S   1<»S. 

SeptemlxM-  19,  1S:>0,  John  C.  Jones  was  appointed  to  reside^  in 
the  Hawaiian,    then   commonly  called  th(»   Sandwich, 

Early  relations,  j^j.^jj^j^^  .^^  "agent  of  the  United  States  for  com- 
merce and  seamen." 

In  lH-2i}  the  islands  were  visited  b}-  Capt.  Thomas  ap  Catesby  -Jones, 
connnanding  the  U.  S.  S.  Peacock,  who  was  sent  thither  to  adjust  cer- 
tain matters  atiecting  the  interests  of  American  residents.  He  accom- 
plished his  mission  successfully,  and  besides  concluded  the  tirst  treaty 


476  soveeeignty:  its  acquisition  and  loss.         [§108. 

formally  negotiated  with  the  Hawaiian  king  by  the  representative  of  a 
foreign  power;  but  this  treaty  was  not  ratified  by  the  United  States. 

In  lS2i>  Captain  Finch,  of  the  U.  S.  S.  Vhicen?ie.s,  who  visited  the 
islands,  bearing  presents  and  a  letter  written  in  the  name  of  the  Presi- 
dent by  the  Secretary  of  the  Navy,  estimated  the  number  of  American 
vessels  that  called  at  the  islands  in  the  course  of  a  year  at  one  hundred, 
their  aggregate  tonnage  at  35,000,  and  their  value  with  their  cargoes  at 
upwards  of  $5. 000,000.  All  these  vessels  were  concerned,  in  one  waj' 
or  another,  wnth  the  pursuit  of  commerce  in  the  P^ast. 

A  treatv  with  the  king  of  the  islands  was  concluded  b}'  a  British 
naval  officer  November  16,  1836.  A  treaty  and  a  convention  were  con- 
cluded by  a  French  naval  officer  in  1839. 

Report  vt  Mr.  Allen,  Chief  of  the  Bureau  of  Rolls  and  Library  of  the  Depart- 
ment of  State,  February  9,  1893,  B.  Ex.  Doc.  77,  52  Cong.  2.se9S. ;  For. 
Rel.  1894,  Ai)p.  II;  Relation  of  the  United  States  to  Asiatic  Politics,  The 
Independent.  May  4.  1899,  120(5. 

'•The  ["nited  States  have  regarded  tlie  existing  authorities  in  the 

Sandwich  Islands  as  a  Government  suited  to  the  con- 

,nxn          dition  of  tlie  people,  and  resting  on  their  own  choice; 
ter,  1842.  .....  .  . 

and  the  President  is  of  opinion  that  the  interests  of  all 

commercial  nations  re({uire  that  that  (xovernment  should  not  be  inter- 
fered with  by  foreign  powers.  Of  the  vessels  which  visit  the  islands, 
it  is  known  that  the  great  majority  belong  to  the  United  States.  The 
United  States,  therefore,  are  more  interested  in  the  fate  of  the  islands 
and  of  their  Government  than  any  other  nation  can  be;  and  this  con- 
sideration induces  the  President  to  be  quite  willing  to  declare,  as  the 
sense  of  the  Government  of  the  United  States,  that  the  Government 
of  the  Sandwich  Islands  ought  to  ])e  respected;  that  no  power  ought 
eith(>r  to  take  possession  of  the  islands  as  a  conquest  or  for  the  purpose 
of  colonization,  and  that  no  power  ought  to  seek  for  any  undue  control 
over  the  existing  Government,  or  any  exclusive  privileges  or  prefer- 
ences with  it  in  matters  of  commerce."* 

Mr.  Webster,  Sec.  of  State,  to  Messrs.  llaalilio  and  Richards,  agents  from 
Hawaii,  Dec.  19,  1S42,  (i  \Vel)ster's  Works,  478;  II.  Ex.  Doc.  35,  27  Cong. 
3  sess.;  For.  Rel.  1894,  Apj).  II.  44. 

"Owing  to  their  locality  and  to  th(»  course  of  the  winds  which  pre- 
vail in  this  quarter  of  the  world,  the  Sandwich  Islands 
President  Tyler's  ^i         ^  •  i  x-  i  i      n  i 

arc  the  stopping  place  tor  almost  all  vessels  passing 
message.  .  .  .  . 

from  continent  to  continent  across  the  Pacitic  Ocean. 

They  are  especially  resorted  to  l)y  the  great  ninnbers  of  vessels  of  the 
Ignited  States  which  are  engaged  in  the  whale  fishery  in  those  seas. 
The  numl)er  of  vessels  of  all  sorts  and  the  amoimt  of  property  owned 
by  citizens  of  the  Ignited  States  which  are  found  in  those  islands  in 
the  <-()urse  of  a  year  are  stated,  probably  with  sufficient  accuracy,  in 
the  letter  of  the  ajrents. 


§  1^8.]  HAWAIIAN    ISLANDS.  477 

"Just  emergino-  from  a  state  of  l)ar])arisin.  the  Government  of  the 
islands  is  as  yet  feeble;  but  its  dispositions  appear  to  be  just  and 
pacific,  and  it  seems  anxious  to  improve  the  condition  of  its  people  ])y 
the  introduction  of  knowledge,  of  relio-ious  and  moral  institutions, 
means  of  education,  and  the  arts  of  civilized  life. 

"It  can  not  but  be  in  conformity  with  the  interest  and  the  wishes  of 
the  Government  and  the  people  of  the  United  States  that  this  com- 
munity, thus  existing  in  the  midst  of  a  vast  expanse  of  ocean,  should  be 
respected,  and  all  its  rights  strictly  and  conscientiously  regarded.  And 
this  must  also  be  the  true  interest  of  all  other  commercial  states.  Far 
remote  from  the  dominions  of  European  powers,  its  growth  and  pros- 
perity as  an  independent  state  may  yet  be  in  a  high  degree  useful  to 
all  whose  trade  is  extended  to  those  i-egioiis,  while  its  nearer  approach 
to  this  continent  and  the  intercourse  which  American  vessels  have  with 
it,  such  vessels  constituting  five-sixths  of  all  which  annually  visit  it, 
could  not  but  create  dissatisfaction  on  the  part  of  the  United  States  at 
anv  attempt  by  another  power,  sjiould  such  an  attempt  be  threatened 
or  feared,  to  take  possession  of  the  islands,  colonize  them,  and  subvert 
the  native  Government.  Considering,  therefore,  that  the  United  States 
possess  so  very  large  a  share  in  the  intercourse  with  those  islands,  it  is 
deemed  not  unlit  to  make  the  declaration  that  their  Government  seeks, 
nevertheless,  no  peculiar  advantages,  no  exclusive  control  over  the 
Hawaiian  Government,  ])ut  is  content  with  its  independent  existence, 
and  anxiously  wishes  for  its  security  and  prosperity.  Its  forbearance 
in  this  respect,  under  the  circumstances  of  the  very  large  intercourse 
which  American  vessels  have  with  the  islands,  would  justify  this  Gov- 
ernment, should  events  hereafter  arise  to  require  it,  in  making  a  decided 
remonstrance  against  the  adoption  of  an  opposite  policy  by  any  other 
power.  Under  the  circumstances,  I  recommend  to  Congress  to  pro- 
vide for  a  moderate  allowance,  to  be  made  out  of  the  Treasury,  to  the 
consul  resi<ling  there,  that,  in  a  Government  so  new  and  a  country  so 
remote,  American  citizens  may  liave  respectable  authority  to  which  to 
apply  for  redress  in  case  of  injury  to  their  persons  and  property,  and 
to  whom  the  Government  of  the  country  may  also  make  known  any 
acts  committed  by  American  citizens  of  which  it  may  think  it  has  a 
right  to  complain.'' 

Message  of  President  Tyler,  Dec.  80,  1842,  (5  We))ster's  Works,  -t(i;5-'4;  II.  Kx. 
Doc.  35,  27th  Cong.  3  sess.;  For.  Kel.  1894,  App.  II.  39. 

The  foregoing  message  of  President  Tyler  and  the  letter  of  Mr. 
We))ster  grew  out  of  the  visit  to  Washington  of  William  Richards,  a 
clergyman,  and  Timoteo  Ilaaliiio,  a  native,  who  visited  the  United 
States,  England,  and  France  with  a  view  to  secur(>  recognition  of 
Haw^aiian  independence.  Whil(>  saying  that  the  United  States  regarded 
the  existing  authorities  in  the  Islands  "as  a  government  suited  to  the 
condition  of   the   pe()[)le"'  and  that  that  government  "ought  to  be 


478  sovereignty:  its  acquisition  and  loss.         [§  108. 

respected/'  Mr.  Webster  also  stated  that  the  President  did  not  see  any- 
present  necessity  for  the  negotiation  of  a  formal  treat3\  or  the  appoint- 
ment or  reception  of  diplomatic  characters.  A  consul  or  agent  would, 
he  said,  continue  to  reside  in  the  islands;  and  he  intimated  that  the 
correspondence  would  be  communicated  to  Congress  and  would  also 
be  •'officially  made  known  to  the  governments  of  the  principal  com- 
mercial powers  of  Europe.'' 

Lord  George  Paulet.  of  the  British  man-of-war  Carysfort^  in  1843, 
seized  the  islands  in  the  name  of  Her  Britannic 
•  1843  ^^'^j^'"'ty,  and  compelled  the  King  to  sign  a  deed  of 
cession.  Lord  Paulet  immediately  appointed  a  commis- 
sion to  conduct  the  government.  Commodore  Kearney.  U.  S.  N.,  who 
arrived  July  11  in  the  same  year,  on  the  frigate  ConsteJhitlmu  pro- 
tested against  the  cession  and  also  against  the  acts  of  the  commission 
so  far  as  they  injuriously  affected  the  rights  of  American  citizens. 
On  July  31,  1S43.  Kear-Admiral  Thomas,  R.  N.,  who  had  arrived  at 
Honolulu  on  the  man-of-war  Dnhliiu  restored  the  Hawaiian  flag  and 
disavowed  the  act  of  seizure.  June  25,  1843.  the  British  minister  at 
Washington  informed  the  Department  of  State  that  the  seizure  was 
"entirely  unauthorized  by  Her  Majesty's  Government."  On  the  13th 
of  the  same  month.  Mr.  Legare  had  written,  as  Secretary  of  State,  to 
Mr.  Everett,  then  United  States  minister  in  London,  that  "'we  might 
even  feel  justified,  consistentlv  with  our  own  principles,  in  interfering 
b}^  force  to  prevent  its  [the  Hawaiian  Kingdom]  falling  into  the  hands 
of  one  of  the  great  powers  of  Europe."" 

November  28,  1843.  Lord  Aberdeen,  then  foreign   secretary,  and 

the  French  ambassador  at  London,  signed  a  declara- 

,    ,      ,.  tion    to   the   effect  that   Great    Britain    and  France, 

declaration.  .         .  .  .  .  ,  ' 

"taking  into  consideration  the  existence  in  the  Sand- 
wich Islands  of  a  government  capable  of  providing  for  the  regularity 
of  it^  relations  with  foreign  nations,  have  thought  it  right  to  engage, 
reciprocally,  to  consider  the  Sandwich  Islands  as  an  independent  state, 
and  never  to  take  possession,  either  directly  or  under  the  title  of  pro- 
tectorate, or  under  any  other  form,  of  any  part  of  the  territory  of 
which  the\'  are  composed."'^ 

"The  President  has  learned  with  regret  and  astonishment  the  prob- 
able refusal  of  the  Hawaiian  Government  to  conclude  a  treaty  with 
the  United  States  upon  the  terms  of  the  treaty  with  Great  Britain. 
He  entertains  the  hope  that  this  may  not  l)e  their  final  determination. 
If  it  should  be.  he  will  be  compelled  to  consider  it  as  evidence  of  a 
want  of  friendlv  feeling"  toward  this  Government  .   .   .     This  Govern- 


'«  For.  Rel.  1894,  App.  II.  113.  See  also  Mr.  Tp.^hur,  Sec.  of  State,  to  Mr.  Fox,  Brit, 
niin.,  .July  .i,  184.'^,  MS.  Note.<  to  Brit.  Leg.  VI.  289;  Mr.  Marcy,  Sec.  of  State,  to  Mr. 
Buchanan,  Mareh  11,  1854,  MS.  Iu.«t.  Great  Britain,  XVI.  274. 

^-For.  Rel.  1894,  App.  11.64. 


§  108.]  HAWAIIAN    ISLANDS.  479 

ment  having  .  .  .  pledtred  itself  to  accord  to  that  of  the  Hawaiian 
Islands  the  rights  and  privileges  of  a  sovereign  state,  cannot  in  honor 
and  justice  demand  from  it  anything  which,  under  lilve  circumstances, 
it  would  not  demand  from  the  most  powerful  nations.  J  can  discover 
nothing  that  would  justify  this  Government  in  objecting  to  the  deci- 
sions of  the  Hawaiian  courts  in  ordinary  cases  arising  under  the 
municipal  laws  of  the  country  or  in  dictating  the  policy  which  that 
Government  should  pursue  upon  any  domestic  subject,  and  especially 
that  of  the  tenure  of  real  estate  ))y  resident  foreigners  .  .  .  We 
ardentl}^  desire  that  the  Hawaiian  Islands  may  maintain  their  inde- 
pendence. It  would  be  highly  injurious  to  our  interests,  if  tempted 
by  their  weakness,  they  should  ])e  seized  by  Great  Britain  or  France; 
more  especially  so  since  our  recent  acquisitions  from  Mexico  on  the 
Pacific  Ocean." 

Mr.   Buchanan,  8ec.  of  State,  to  Mr.  Ten  P^yck,   comr.   to  Hawaii,  Aug.  28, 

1848,  MS.  Inst.  Hawaii,  II.  1. 
Mr.  Calhoun  once  intimated  that  the  United  States  could  claim  for  their  citi- 

zen.s  in  Hawaii  the  privilege  of  ])eing  tried  hy  a  jury  of  foreigners.     (Mr. 

Calhoun,  Sec.  of  State,  to  Mr.  Mason,  Sec.  of  Navy,  Jan.  11,  1845,  35  MS. 

Dom.  Let.  70.) 
The  treaty  concluded  by  Mr.  Clayton  in  1849  (infra)   merely  provided,   in 

accordance  with  the  view  expressed  by  Mr.  Buchanan,  that  each  country 

should  accord  to  the  citizens  of  the  other  the  same  rights  as  w^ere  secured 

to  its  own,  or  to  the  citizens  of  the  most  favored  nation. 

In  1840  the  armed  forces  of  France  took  possession  of  the  fort,  the 
French  interven-  Government  offices,  and  other  public  property  at 
tion:  American  Honolulu,  in  consequenye  of  disputes  with  the  native 
position  and  authorities.  l)ut  did  not  haul  down  the  Hawaiian 
treaty.  fl^^^ 

Dec.  20.  1849,  Mr.  John  M.  Clayton,  than  Secretary  of  State,  con- 
cluded with  Mr.  James  Jackson  Jarves,  special  commissioner  of  the 
Hawaiian  King,  a  treaty  of  friendship,  commerce,  navigation,  and 
extradition — the  first  regular  treaty  between  the  United  States  and 
Hawaii.     It  was  duly  ratified. 

-'The  Department  will  be  slow  to  believe  that  the  French  have  any 
intention  to  adopt  with  reference  to  the  Sandwich  Islands  the  same  policy 
which  they  have  pursued  in  regard  to  Tahiti.  If,  however,  in. your 
judgment,  it  should  be  warranted  by  circumstances,  j^ou  may  take  a 
proper  opportunity  to  intimate  to  the  minister  for  foreign  affairs  of 
France,  that  the  situation  of  the  Sandwich  Islands  in  respect  to  our  pos- 
sessions on  the  Pacific,  and  the  bonds,  conunercial  and  of  other  descrip- 
tions, between  them  and  the  Tnited  States  are  such  that  Ave  couM  never 
with  indifference  allow  them  to  pass  under  the  dominion  or  exclusive 
control  of  any  other  power.  We  do  not  oursidves  covet  sovereignty 
over  them.     We  would  ))e  content  that  they  should  remain  under  their 


480  sovereignty:  its  acquisition  and  loss.         [§108. 

present  rulers,  who.  we  believe,  are  disposed  to  bo  just  and  impartial 
in  their  dealings  w^ith  all  nations.'" 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Rives,  min.  to  France,  July  5,  1850,  For. 
Rel.  1894,  App.  II.  87.  See,  also,  Mr.  Clayton,  Sec.  of  State,  to  Messrs. 
Judd  &  Jarves,  Hawaiian  comrs.,  June  3,  1850,  MS.  Notes  to  Hawaii,  I.  2. 

The  proceedings  of  M.  Dillon  anu  the  French  admiral  in  Hawaii,  in 
1849,  appearing  "to  have  been  incompatible  with  any  just  regard  for 
the  Hawaiian  Government  as  an  independent  state,"  and  to  indicate 
"a  determination  on  the  part  of  those  officers  to  humble  and  annihi- 
late that  Government,"  the  "further  enforcement"  of  their  demands, 
which  seemed  to  be  the  object  of  M.  Perrin's  mission,  "would  be 
tantamount  to  a  subjugation  of  the  islands  to  the  dominion  of  France. 
A  step  like  this  could  not  fail  to  be  viewed  by  the  Government  and 
people  of  the  United  States  with  a  dissatisfaction  which  would  tend 
seriously  to  distur))  our  existing  friendly  relations  with  the  French 
Government.  This  is  a  result  to  be  deplored.  If,  therefore,  it  should 
not  be  too  late,  it  is  hoped  that  you  will  make  such  representations 
upon  the  subject  to  the  minister  of  foreign  affairs  of  France  as  will 
induce  that  Govermnent  to  desist  from  measures  incompatible  with 
the  sovereignty  and  independence  of  the  Hawaiian  Islands,  and  to  make 
amends  for  the  acts  which  the  French  agents  have  already  committed 
there  in  contravention  of  the  law  of  nations,  and  of  the  treatv  between 
the  Hawaiian  Government  and  France." 

Mr.  AVeteter,  Sec.  of  State,  to  Mr.  Rives,  niiii.  to  I'rance,  June  19,  1851,  For. 
Rel.  1894,  App.  II.  97. 

"The  Government  of  the  United  States  was  the  first  to  acknowledge 
the  national  existence  of  the  Hawaiian  Govermnent,  and  to  treat  with 
it  as  an  independent  state.  Its  example  was  soon  followed  by  several 
of  the  Governments  of  Europe,  and  the  United  States,  true  to  its  treaty 
obligations,  has  in  no  case  interfered  with  the  Hawaiian  Government 
for  the  purpose  of  opposing  the  course  of  its  ovvn  independent  con- 
duct, or  of  dictating  to  it  any  particidar  line  of  policy.  ...  It 
declared  its  real  purpose  to  })e  to  favor  the  establishment  of  a  Govern- 
ment at  a  very  important  point  in  the  Pacific  Ocean,  which  should  be 
able  to  maintain  such  relations  with  the  rest  of  the  world  as  are  main- 
tained between  civilized  states. 

"This  Government  still  desires  to  see  the  nationality  of  the  Hawaiian 
Government  maintained,  its  independent  administration  of  public  affairs 
respected,  and  its  prosperity  and  reputation  increased. 

"But  while  thus  indisposed  to  exercise  any  sinister  influence  itself 
over  the  councils  of  Hawaii,  or  to  overawe  the  proceedings  of  its  Gov- 
ernment by  fhe  menace  or  the  actual  applic^ation  of  superior  military 
force,  it  expects  to  see  other  powerfid  nations  act  in  the  same  spirit. 


§  1^^']  HAWAIIAN    ISLANDS.  481 

It  is,  therefore,  with  unfeigned  regret  that  the  President  has  read  the 
correspondence  and  become  acquainted  with  the  circumstances  occur- 
ring between  the  Hawaiian  Government  and  Mr.  Perrin,  the  commis- 
sioner of  France,  at  Honoluhi.  .  .  .  The  Hawaiian  Islands  are 
ten  times  nearei-  to  the  Tnited  States  than  to  any  of  the  powers  of 
Europe.  Five-sixths  of  all  their  conmiercial  intercourse  is  with  the 
United  States,  and  these  considerations,  together  with  others  of  a 
more  general  character,  have  fixed  the  course  which  the  Goveriunent 
of  the  United  States  will  pursue  in  regard  to  them.  The  annunciation 
of  this  poWvj  will  not  surprise  the  Governments  of  Europe,  nor  be 
thought  to  l)e  unreasonable  ))y  the  nations  of  the  civilized  world;  and 
that  policy  is,  that  while  the  Government  of  the  United  States  itself, 
faithful  to  its  original  assurance,  scrupulousl}^  regards  the  independ- 
ence of  the  Hawaiian  Islands,  it  can  never  consent  to  see  those  islands 
taken  possession  of  hy  either  of  the  great  commercial  powers  of 
Europe,  nor  can  it  consent  that  demands  manifestly  unjust  and  deroga- 
tory, and  inconsistent  with  a  Tjonajide  independence,  shall  be  enforced 
against  that  Government." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Severance,  U.  S.  minister  at  Honolulu,  No. 
4,  July  14,  1851,  For.  Rel.  1894,  App.  II.  99-101.  Mr.  Webster  added 
that  the  substance  of  this  instruction  had  been  intimated  to  the  Gov- 
ernment of  France,  and  that  ^I.  Sartiges,  the  French  minister  at  Wash- 
ington, had  declared  that  his  Government  liad  no  intention  of  taking  the 
islands  or  of  acting  toward  tliem  in  an  aggressive  spirit.  In  an  unnumbered 
and  private  instruction  to  Mr.  Severance,  of  July  14,  1851,  Mr.  Webster 
said:  "In  my  official  letter  of  this  date  I  have  spoken  of  what  the  United 
States  would  do  in  certain  contingencies.  But  in  thus  speaking  of  the 
Government  of  the  United  States  I  do  not  mean  the  executive  power,  but 
the  Government  in  its  general  aggregate,  and  especially  that  branch  of 
the  Government  which  possesses  the  war-making  power.  This  distinction 
you  will  carefully  observe,  and  you  will  neither  direct,  request,  nor  encour- 
age any  naval  officer  of  the  United  States  in  committing  hostilities  on 
French  vessels  of  war."  Mr.  Severance  was  also  to  refrain  from  encour- 
aging in  anyone  "any  idea  or  expectation  that  the  islands  will  become 
annexed  to  the  United  States,"  and  he  was  directed  to  return  a  deed  of 
cession  which  the  king  had  placed  in  his  hands.  (For.  Rel.  1894,  App. 
II.  101-102. ) 

"It  is  earnestly  to  be  hoped  that  the  differences  which  have  for  some 
time  past  been  pending  between  the  Government  of  the  French  Repub- 
lic and  that  of  the  Sandwich  Islands,  may  be  peaceably  and  durably 
adjusted  so  as  to  secure  the  independence  of  those  islands.  Long 
before  the  events  which  huv(>  of  late  imparted  so  much  importance  to 
the  possessions  of  the  United  States  on  the  Pacific  we  acknowledged  the 
independence  of  the  Hawaiian  Government.  This  Government  was 
first  in  taking  that  step,  and  several  of  the  leading  powers  of  P^.urope 
immediately  followed.  We  were  influ(Miced  in  this  measure  by  the 
existing  and  prospective  importance  of  the  islands  as  a  place  of  refuge 

H.  Doc.  551 ;n 


482  SOVEREIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  108. 

and  refreshment  for  our  vessels  engaged  in  the  whale  fishery,  and  by 
the  consideration  that  they  lie  in  the  course  of  the  great  trade  which 
must,  at  no  distant  day,  ))e  carried  on  between  the  western  coast  of 
North  America  and  P^astern  Asia. 

'•We  were  also  influenced  by  a  desire  that  those  islands  should  not 
pass  under  the  control  of  any  other  great  maritime  state,  but  should 
remain  in  an  independent  condition,  and  so  be  accessible  and  useful 
to  the  conunerce  of  all  nations.  I  need  not  say  that  the  im})ortance  of 
these  considerations  has  l)een  greatly  enhanced  by  the  sudden  and  vast 
development  which  the  interests  of  the  United  States  have  obtained  in 
California  and  Oregon,  and  the  policy  heretofore  adopted  in  regard 
to  those  islands  will  ])e  steadily  pursued,'' 

President  Firiniore,  Sec-ond  Annual  Message,  Dec.  2,  1851,  Richardson's  ^les- 
sages,  V.  120. 

September  22.  1853,  Mr,  Marcy.  who  had  then  become  Secretary  of 
State,  observed  that  the  islands  would,  at  some  period 

Attempted  annexa-  i  i.   n        t-   j.      j.  i^i  j.      i_        j. 

■      ,0...  perhaps  not  tar  distant,  come  under  the  protectorate 

tion.  1854.  '^  ,  I  .  ,        .  *■ 

of  or  be  transferred  to  some  foreign  power.     It  was 

not.  said  Mr.  Marcy.  the  policy  of  the  United  States  to  accelerate  such 
a  change,  but  if  in  the  course  of  events  it  became  unavoidable,  the 
United  States  would  rather  acquire  their  sovereignty  than  see  it  trans- 
ferred to  any  other  power.  "The  intercourse  l)etween  our  Pacific 
ports  and  the  ports  of  the  distant  P]ast  is,"  continued  Mr,  Marcy, 
""destined  perhaps  to  be  u])on  as  large  a  scale  as  that  which  we  now 
enjoy  with  all  the  world,  and  the  vessels  engaged  in  that  trade  must 
ever  resort  to  the  Sandwich  Islands  for  fuel  and  other  supplies,  as  has 
ever  been  the  case  with  our  whale  ships  in  their  outward  and  inward 
voyages.  It  is  consetiuentiy  indispensable  to  our  welfare  that  the 
polic\'  which  governs  them  should  be  lil)eral.  and  that  it  should  con- 
tinue free  from  the  control  of  any  third  country,"" 

Dispatchivs  subsecjuently  received  fi'om  Mr,  Gregg  indicated  that 
the  Hawaiian  (T()V(^rmnent  had  become  convinced  of  its  inability  to 
sustain  itself  any  longer  as  an  independent  state,  and  that  it  was  pre- 
pared to  throw  itself  upon  the  protection  of  the  United  States,  or  to 
.seek  incorpc^ration  into  the  American  political  system.  To  ]Mr,  Marcy 
it  seemed  •'ine\ita))le  that  they  [the  Hawaiian  Islands]  must  come 
und(>r  the  control  of  this  Government. ''  and  to  be  *'  ])ut  rea.sonable  and 
fair"'  that  England  and  France  "should  acquiesce  in  such  a  disposition 
of  them,  provided  the  ti'ansference  was  efl'ected  by  fair  means." 
Both  England  and  France  were  already  *" apprised  of  our  determina- 
tion not  to  allow  them  to  be  owned  by  or  to  fall  under  the  protection 
of  either  of  these  powers  or  of  any  other  European  nation,"'' 

«Mr.  Many,  Sec  <>f  .state,  to  Mr.  (Iretrg,  niin.  to  Hawaii,  Sept.  22,  1853,  MS,  Inst, 
to  Hawaii,  II.  48. 

''Mr.  Marcy,  Sec.  of  State,  to  Mr.  Mason,  minister  to  France,  December  16,  1853, 
For.  Rel.  1894,  App.  II.  100. 


§  1^^-]  HAWAIIAN    ISLANDS.  483 

Mr.  Marc}-  subsequently  instructed  Mr.  Gregg-  to  negotiate  a  treaty 
of  annexation."  Mr.  Gregg  negotiated  .sueh  a  treaty.  l)ut  it  was 
unsatisfactory  to  the  United  States,  not  only  l)ecau.sc  of  the  excessive 
amount  of  annuities  which  it  pledged  to  the  native  rulers.  l)ut  also 
because  it  provided  that  the  islands  should  be  "  incorporated  into  the 
American  Union  as  a  State."''  Before  the  necessary  changes  in  the 
treaty  could  be  obtained  the  reigning  king  died,  and  as  his  successor 
was  unfavorable  to  annexation  the  negotiations  failed. 

July    20,    1855,   Mr.    Marcy   signed,    with    a  commissioner  of   the 

^^  Hawaiian    Government,  at  Washington,    a   treatv  of 

Eflforts  for  reciproc-  .  .,  rrii  •       ,        ,  .  .     i        ,  ,    "       , 

ity,  1855, 1867.    I'Cfiprocity.      Ihis   treaty   was  not  ratihed.  although 

the  Senate  Committee  on  Foreign  Relations  is  said 
to  have  been  favorable  to  it.'  During  the  Civil  War  in  the  United 
States,  the  Hawaiian  Government  sought  to  revive  the  reciprocity 
treaty,  but,  in  view  of  the  probal)le  effect  of  such  a  measure  on  the 
public  revenue  at  that  time,  it  was  not  thought  advisable  at  Washing- 
ton to  entertain  the  subject.''  The  rank  of  the  diplomatic  officer  of  the 
United  States  at  Honolulu  was  raised  in  1863  to  that  of  minister  resi- 
dent. In  December.  1866.  Emma,  Queen  Dowager  of  Hawaii,  visited 
the  United  States  on  her  way  from  England  to  Honolulu.'  On  May 
21,  1867,  a  new^  reciprocity  treaty  was  concluded,  but  after  remain- 
ing in  suspense  three  years  it  was  rejected  by  the  United  States  Senate 
June  1,  1870.  •'■ 

MeanW'hile    the    question    of    annexation    was    again    agitated   and 
the  minister  of   the  United  States  at   Honolulu  was 

Revival  of  annexa-    .      ,         -    j  l.,!     .  i        i?    i         ^  i?    i  j_-  a 

.    ,        instructed     that  a  lawful  and  peaceful  annexation  of 
tion  project.  .  -r    .  ,  . 

the  islands  to  the  United  States,  with  the  consent  of  the 

people  of  the  Sandwich  Islands,  is  deemed  desirable  by  this  Govern- 
ment; and  that  if  the  polic}'  of  annexation  should  really  conflict  with 
the  policy  of  reciprocity,  annexation  is  in  every  case  to  be  preferred."^ 

cyir.  Marcy,  Sec.  of  State,  to  IVIr.  Gregg,  April  4,  1854,  t\)r.  Rel.  1894,  App.  II.  121. 

&For.  Eel.  1894,  App.  II.  121-181. 

'■'Sir.  ^larcy,  after  the  signature  of  the  treaty,  «ii(l:  ''In  vii'w  of  the  geographical 
position  of  tho.se  [Hawaiian]  islands,  and  the  magnitude  of  the  American  interests 
therein,  the  United  States  would  not  regard  with  unconeern  an  attempt  on  tlie  part 
of  any  foreign  power,  and  especially  any  Euroi)ean  maritime  j)Ower,  to  disturb  the 
repose  or  interfere  with  the  security  of  the  Hawaiian  (Government."  (Mr.  ^larcy. 
Sec.  of  State,  to  ^Nlr.  Lee,  Hawaiian  eoinr.,  Sei)t.  21,  IS-'m,  MS.  Notes  to  Hawaii,  I.  4.) 

'/For.  Rel.  1894,  App.  II.  13H,  Rejiort  of  Mr.  Seward,  Secretary  of  Statf,  to  the 
President.  See,  also,  Mr.  Seward,  Sec.  of  Stati-,  to  Mr.  Allen,  Jan.  11,  1S(>4,  MS. 
Notes  to  Hawaii,  I.  32;  to  Mr.  McBride,  Feb.  8,  18(34,  and  Oct.  17,  1864,  MS.  Inst. 
Hawaii,  II.  li:!,  120. 

^Mr.  Seward.  Sec.  of  State,  to  Mr.  .McCook,  Sept.  24,  18HH,  MS.  lust.  Hawaii.  II. 

146. 

/Mr.  Seward,  Sec.  of  State  to  Mr.  >h'(  ullocli.  Sec.  of  Treasury,  Jan.  .SO,  1867,  75 
MS.  Dom.  Let.  168. 

f/Mr.  Seward,  Sec.  of  State,  to  .Mr.  McCook,  .^eptendter  12,  1867,  For.  Rel.  1894, 
App.  II.  143. 


484  sovereignty:  its  acquisition  and  loss.         [§  108. 

A  yoHi"  later,  however.  Mr.  Seward  wrote  that  "the  public  attention 
sensibly  continues  to  be  fastened  upon  the  domestic  questions  which 
have  jjfrown  out  of  the  late  Civil  War.  The  public  mind  refuses  to 
dismiss  these  questions  even  so  far  as  to  entertain  the  higher  but  more 
remote  <iuestions  of  national  extension  and  aggi^andiz^ment."-' 

Early  in  1871,  the  discussion  of  annexation  was  reopened  by  the 
minister  of  the  United  States  at  Honolulu.^  His  dispatch  was  confi- 
dentially communicated  to  the  Senate  by  President  Grant  without  any 
recommendation,  but  with  the  statement  that  the  views  of  the  Senate, 
if  it  should  be  deemed  proper  to  express  them,  "would  be  very  accept- 
able with  reference  to  an}'  future  course  which  there  might  be  a  dis- 
position to  adopt."'" 

•"The  position  of  the  Sandwich  Islands  as  an  outpost  fronting  and 
commanding  the  whole  of  our  possessions  on  the  Pacific  Ocean,  gives 
to  the  future  of  those  islands  a  peculiar  interest  to  the  Government 
and  people  of  the  United  States.  It  is  very  clear  that  this  Govern- 
ment can  not  be  expected  to  assent  to  their  transfer  from  their  present 
control  to  that  of  any  powerful  maritime  or  conmiercial  nation.  Such 
transfer  to  a  maritime  power  would  threaten  a  military  surveillance  in 
the  Pacific  similar  to  that  which  Bermuda  has  afforded  in  the  Atlantic — 
the  latter  has  been  submitted  to  from  necessity,  inasnuich  as  it  was 
congenital  with  our  Government — but  w^e  desire  no  additional  similar 
outposts  in  the  hands  of  those  who  may  at  some  future  time  use  them 
to  our  disadvantage. 

■*The  condition  of  the  Government  of  Hawaii  and  its  evident  tend- 
ency to  decay  and  dissolution  force  upon  us  the  earnest  consideration 
of  its  future — possibly  its  near  future. 

■'There  seems  to  be  a  strong  desire  on  the  part  of  many  persons  in 
the  islands,  representing  large  interests  and  great  wealth,  to  become 
annexed  to  the  United  States.  And  while  there  are,  as  I  have  alreadj' 
said,  many  and  influential  persons  in  this  country  who  question  the 
policy  of  any  insular  acquisitions,  perhaps  even  of  any  extension  of 
territorial  limits,  there  are  also  those  of  influence  and  of  wise  fore- 
sight who  see  a  future  that  must  extend  the  jurisdiction  and  the  limits 
of  this  nation,  and  that  will  require  a  resting  spot  in  the  midocean. 


"Mr.  Si'ward,  Sec.  of  State,  to  Mr.  Spalding,  July  5,  1868,  For.  Rel.  1894,  App.  II. 
144.  See,  also,  rontidential  circular,  Mr.  Seward,  Sec.  of  State,  to  Mr.  Dix,  min.  to 
Fraiue,  Aug.  31,  1S6S,  referring  to  a  special  mission  from  Hawaii  to  Europe  for  the 
revi.^ion  of  treaties,  ami  saying:  "While  the  opinion  extensively  prevails  among  us 
that  tJie  .sovereignty  of  those  islands  ought  to  l>e  acquired  without  delay  by  the 
Unite<l  States,  the  opinion  is  universal  that  it  would  be  incompatible  with  the  inter- 
ests of  the  T'nited  States  to  let  the  islands  fall  under  the  jurisdiction,  protection,  or 
dominating  influence  of  any  foreign  j>ower."     (MS.  In.«t.  France,  XVIII.  191.) 

''Mr.  Pierce  to  Mr.  Fish,  February  25.  1S71,  For.  Rel.  1894,  App.  11.  17. 

'  ("onlidential  mes.>^age  to  the  Senate,  April  .">.  1871,  For.  Rel.  1894,  App.  II.  16;  Mr. 
Fish,  Sec.  of  State,  to  Mr.  Pierce,  April  5,  1871,  MS.  Inst.  Hawaii,  II.  212. 


§108']  HAWAIIAN    ISLANDS.  485 

between  the  Pacific  coa.st  and  the  vast  domains  of  Asia,  which  an-,  now 
opening  to  commerce  and  Christian  civilization," 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Pierce,  iiiiu.  to  Hawaii,  :March  25,  1873,  For. 
Rel.  1894,  App.  II.  19;  MS.  Inst.  Hawaii,  II.  243.  See  Mr.  J.  C.  B.  Davis, 
Act.  Sec.  of  State,  to  Mr.  Pierce,  March  15,  1873,  MS.  Inst.  Hawaii,  J  I. 
242;  Mr.  Fisli,  Sec.  of  State,  to  Mr.  Pierce,  June  27  and  Oct.  15,  1873,  MS. 
Inst.  Hawaii,  II.  252,  256. 

In  1874  King  Kalakaiia,  with  a  suite  of  several  persons  and  accom- 
panied bv  the  American  minister,  visited  the  United 

Reciprocity  treaty,     o^.   ^  Vt  •        i    •       .-i         ^^  .  ,  .       ^ 

Jan.  30  1875.       'States.     He  arrived  in  ban  Irancisco  at  the  end  of 

November,    and   after   visiting    Washington   made  a 

journey  through  New  England  and  other  parts  of  the  country.     He 

returned   to  Hawaii  in  February,  1875,  on  the  U.   8.  S.  J\ii>«u<)la. 

One  of  the  principal  objects  of  his  visit  was  to  obtain  a  reciprocity 

treaty." 

January  30, 1875,  there  was  concluded  between  the  United  States  and 
the  Hawaiian  Islands  a  convention  concerning  commercial  reciprocit3^ 
Article  IV.,  as  amended  b}-  the  Senate,  provided  that  His  Hawaiian 
Majesty  should  not,  while  the  treaty  remained  in  force,  ""lease  or  other- 
wise dispose  of  or  (create  any  lien  upon  any  port,  harbor,  or  other 
territory  in  his  dominions,  or  grant  any  special  privilege  or  rights  of 
use  therein  to  any  other  power,  state,  or  government,  nor  make  -A\\y 
treaty  by  which  any  other  nation  shall  obtain  the  same  privileges,  rel- 
ative to  the  admission  of  any  articles  free  of  duty^  hereby  secured  to 
the  United  States."  -Another  amendment  of  the  Senate,  in  Art.  V., 
provided  that  the  treaty  should  not  take  effect  till  a  law  to  cawy  it 
into  operation  should  be  passed  by  the  Congress  of  the  Ignited  States. 

Such  a  law  was  approved  Aug.  15,  1876,  and  on  the  9th  of  Septem- 
ber the  President  by  proclamation  declared  the  treaty  to  be  in  oper- 
ation.'' Claims  were  afterwards  made  by  British  and  German  mer- 
chants, with  the  support  of  their  Governments,  for  the  benefits  of  the 
treaty  in  Hawaii  under  the  most-favored-nation  clauses  in  their  trea- 
ties with  that  Go^•ernment.  •  l\v  a  separate  article  to  the  treaty  l)etween 
Germany  and  Hawaii,  concluded  at  Berlin  March  25  and  at  Honolulu 
Sept.  19,  1879,  it  was  expressly  agreed  that  "the  special  advantages 
granted  by  said  convention  [of  Jan.  30,  1875 1  to  the  United  States  of 
America,  in  consideration  of  equivalent  advantages,  shall  not  in  an}^ 

"For.  Rel.  1875,  I.  669-679;  S.  Ex.  Doc.  2,  44  Cong.  1  sess.  See  Mr.  Fisli,  Sec.  of 
State,  to  Mr.  Pierce,  Ai)ril  8,  1875,  MS.  In.«t.  Hawaii,  II.  286. 

''The  treaty  is  discussed  in  the  President's  Message  of  Dec.  6,  1875,  II.  I'x.  Doc. 
1,  44  Cong.  1  sess.;  reports,  favorable  and  unfavora])le,  on  the  hill  to  carry  it  into 
effect  may  be  found  in  H.  Keport  116,  parts  1  and  2,  44  Cong.  1  sess.  and  the  de- 
bates may  be  seen  in  the  Cong.  Kecord.  See  also  the  President's  Mcs.^age,  Dec.  9, 
1876,  H.  Fx.  Doc.  1,  44  C(mg.  2  sess.;  and  the  President's  proclamation  of  Sept.  9, 
1876,  19  Stats.  ()()(). 


486  SOVEEEIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  108. 

fuse  1)0  invoked  in  favor  of  the  relation.s  .sanctioned  ...  by  the 
present  treaty,"  thoiio'h  it  contained  (Art.  Ill)  a  luost-favored-nation 
chiuse.  In  respect  of  the  claims  of  the  British  merchants,  the  Gov- 
ernment of  the  United  States  informed  that  of  Hawaii  that  it  would 
consider  their  admission  as  a  violation  of  the  treaty,  and  that  'Mf  any 
other  power  should  deem  it  proper  to  employ  undue  influence  upon 
the  Hawaiian  (xovernment  to  persuade  or  compel  action  in  derogation 
of  this  treaty,  the  Government  of  the  United  States  will  not  be  unob- 
servant of  its  rights  and  interests,  and  will  ])e  neither  unwilling  nor 
unpreimred  to  support  the  Hawaiian  Government  in  the  faithful  dis- 
charge of  its  treaty  obligations."^' 

"  The  position  of  the  Hawaiian  Islands  in  the  vicinity  of  our  Pacific 
coast,    and   their   intimate  commercial   and    political 

Assertions  of  Ameri-     ,    ,.  .,,  \       ^  j.\  •     /^  -   i  .    i        •j.\ 

relations  with  us,  lead  this  Government  to  watch  with 

can  predominance. 

grave  interest,  and  to  regard  unfavorabl}-,  any  move- 
ment, negotiation,  or  discussion  aiming  to  transfer  them  in  an}'^ 
eventuality  whatever  to  another  power." 

Mr.  Blaine,  See.  of  State,  to  Mr.  Lowell,  Apr.  23,  LSSl,  MS.  Inst.  Gr.  Brit., 
XXVI.  112;  :Mr.  Blaine,  Ser.  of  State,  to  Mr.  White,  niin.  to  Germany, 
April  22,  ISSl,  XVII.  70. 

"The  Government  of  the  United  States  has  alwaj^s  avowed  and 
now  repeats  that,  under  no  circumstances,  will  it  permit  the  transfer 
of  the  territory  or  sovereignt}^  of  these  islands  to  any  of  the  great 
European  powers.  It  is  needless  to  restate  the  reasons  upon  which 
that  determination  rests.  It  is  too  obvious  for  argument  that  the 
possession  of  these  islands  by  a  great  maritime  power  would  not  only 
be  a  dangerous  diminution  of  the  just  and  necessary  influence  of  the 
United  States  in  the  waters  of  the  Paciflc,  ))ut  in  case  of  international 
difticulty  it  would  be  a  positive  threat  to  interests  too  large  and 
important  to  be  lightly  risked. 

"  Neither  can  the  Government  of  the  I'nited  States  allow  an  arrange- 
ment which,  by  diplomatic,/7/A<'.sw  or  legal  technicality,  substitutes  for 
the  native  and  legitimate  constitutional  Government  of  Hawaii  the 
controlling  influence  of  a  great  foreign  power.  This  is  not  the  real 
and  substantial  independence  which  it  desires  to  see  and  which  it  is 
prepared  to  su})port.  And  this  Government  would  consider  a  scheme 
by  which  a  large  mass  of  British  subjects,  forming  in  time  not  improb- 
ably the  majority  of  its  population,  should  be  introduced  into  Hawaii, 
made  independent  of  the  native  Government,  and  be  ruled  by  British 
authorities,  judicial  and  diplomatic,  as  one  entirely  inconsistent  with 
the  friendly   relations  now  existing  between  us,  as  trenching  upon 

"Mr.  Blaine,  Sec.  <.f  State,  to  Mr.  Coiiily,  minister  to  Hawaii,  .Inne  .SO,  1881,  For. 
Kel.  1881,  ()24-t)2(). 


§  1^8.]  HAWAIIAN    ISLANDS.  48T 

treaty  rights  which  we  have  secured  by  no  small  consideration,  and  as 
certain  to  involve  tlie  two  countries  in  irritating  und  unprotitable 
discussion." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Comlv.  V.  S.  minister  at  Honolulu,  Nov.  19, 
1881,  For.  Kel.  ISSl,  (v!:{. 

''  Before  the  United  States  iiad  ))ecome  a  power  on  the  Pacific  coast, 
the  commercial  activity  of  our  people  was  manifested  in  tiieir  inter- 
course with  the  islands  of  Oceanica,  of  which  the  Hawaiian  group  is  the 
northern  extremity.  In  1848  the  treaty  of  Guadalupe  Hidalgo  con- 
firmed the  territorial  e.\tensio)i  of  the  United  States  to  the  Pacific, 
and  gave  to  the  Union  a  coast  line  on  that  ocean  little  inferior  in 
extent,  and  superior  in  natural  wealth,  to  the  Atlantic  seaboard  of  the 
original  thirteen  States.  In  l848-4!>  the  discoveries  of  gold  in  Cali- 
fornia laid  the  foundation  for  the  marvelous  development  of  the 
western  coast,  and  in  that  same  year  the  necessities  of  our  altered  rela- 
tionship to  the  Pacific  Ocean  found  expression  in  a  comprehensive 
convention  of  friendship,  commerce,  and  navigation  with  the  sover- 
eign Kingdom  of  Hawaii.  .  .  .  The  movements  toward  intimate 
commercial  relations  between  the  two  countries  after  the  progres- 
sive negotiations  of  1850.  1867,  and  1809,  culminated  in  the  existing 
reciprocity  treaty  of  January  30,  1875,  which  gave  to  the  United  States 
in  Hawaii,  and  to  Hawaii  in  the  United  States,  trading  rights  and 
privileges  in  terms  denied  toother  countries. 

"Since  that  time  [1848]  our  domain  on  the  Pacific  has  been  vastlj" 
increased  by  the  purchase  of  Alaska.  Taking  San  Francisco  as  the 
commercial  center  on  the  western  slope,  a  line  drawn  northwestward!}' 
to  the  Aleutian  group  marks  our  Pacific  border  almost  to  the  confines 
of  Asia.  A  corresponding  line  drawn  southwestwardly  from  San 
Francisco  to  Honolulu  marks  the  natural  limit  of  the  ocean  belt  within 
which  our  trade  with  the  oriental  countries  must  flow,  and  is,  more- 
over, the  direct  line  of  communication  between  the  United  States  and 
Australasia.  ^^'ithin  this  belt  lies  the  conmiercial  domain  of  our 
western  coast. 

"I  have  had  recent  occasion  to  set  forth  the  ^'itally  integral  impor- 
tance of  our  Pacific  possessions,  in  a  circular  letter  addressed  on  the 
24th  of  June  last  to  our  representatives  in  PLurope,  touching  the  nec- 
essary guarantees  of  the  proposed  Panama  Canal  as  a  purely  American 
waterway  to  be  treated  as  part  of  our  own  coast  line.  The  extension 
of  commercial  empire  westward  from  those  States  is  no  less  vitally 
im})ortant  to  their  development  than  is  their  comnuniication  with  the 
eastern  coast  by  the  isthmian  chamiel.     .     .     . 

"In  thirty  years  the  United  States  has  acipiired  a  legitima  ely  domi- 
nant influence  in  the  North  Pacific,  which  it  can  n(>ver  consent  to  see 
decreased  bv  the  intrusion  therein  of  any  element  of  influence  hostile 


488  SOVEKEIGNTY :    ITS    ACQUISITION    AND   LOSS.  [§  108. 

to  its  own.  The  situation  of  the  Hawaiian  Ishmds,  giving  them  the 
strategics  control  of  the  North  Pacific,  brings  their  possession  within 
the  range  of  questions  of  purely  American  policy,  as  much  so  as  that 
of  the  Isthmus  itself.  Hence  the  necessity,  as  recognized  in  our 
existing  treaty  relations,- of  drawing  the  ties  of  intimate  relationship 
between  us  and  the  Hawaiian  Islands  so  as  to  make  them  practically 
a  part  of  the  American  system  without  derogation  of  their  absolute 
independence.  The  reciprocity  treaty  of  1875  has  made  of  Hawaii  the 
sugar-raising  tield  of  the  Pacific  slope,  and  gives  to  our  manufacturers 
therein  the  same  freedom  as  in  California  and  Oregon.  That  treaty 
gave  to  Hawaii  its  first  great  impetus  in  trade,  and  developed  that 
activity  of  production  which  has  attracted  the  eager  attention  of  P^uro- 
pean  powers  anxious  to  share  in  the  prosperity  and  advantages  which 
the  United  States  have  created  in  mid-ocean.  From  1877,  the  first  full 
3'ear  succeeding  the  conclusion  of  the  reciprocity  treaty,  to  1880,  the 
imports  from  Hawaii  to  the  United  States  nearly  doubled,  increasing 
from  $2,550,335  in  value  to  $4:,606.4-l:-l,  and  in  this  same  period  the 
exports  from  the  United  States  to  Hawaii  rose  from  $1,272,949  to 
$2,026,170.  In  a  word,  Hawaii  is,  by  the  wise  and  beneficent  provi- 
sions of  the  treaty,  brought  within  the  circle  of  the  domestic  trade  of 
the  United  States,  and  our  interest  in  its  friendly  neutralit}-  is  akin  to 
that  we  feel  in  the  guaranteed  independence  of  Panama.  On  the  other 
hand,  the  interests  of  Hawaii  nuist  inevitabl}^  turn  toward  the  United 
States  in  the  future,  as  in  the  present,  as  its  natural  and  sole  ally  in 
conserving  the  dominion  of  both  in  the  Pacific  trade.  Your  own 
observation,  during  your  residence  at  Honolulu,  has  shown  you  the 
vitality  of  the  American  sentiment  which  this  state  of  things  has  irre- 
sistibly developed  in  the  islands.  I  view  that  sentiment  as  the  logical 
recognition  of  the  needs  of  Hawaii  as  a  member  of  the  American  sys- 
tem of  states  rather  than  as  a  blind  desire  for  a  protectorate  or  ultimate 
annexation  to  the  American  Union. 

"This  Government  has  on  previous  occasions  been  brought  face  to 
face  with  the  question  of  a  protectorate  over  the  Hawaiian  group.  It 
has,  as  often  as  it  arose,  been  set  aside  in  the  interest  of  such  commer- 
cial union  and  such  reciprocity  of  ])enefits  as  would  give  to  Hawaii  the 
highest  advantages,  and  at  the  same  time  strengthen  its  independent 
existence  as  a  sovereign  state.  In  this  I  have  sunmied  up  the  whole 
disposition  of  the  United  States  toward  Hawaii  in  its  present  condition. 

"The  policy  of  this  countr}^  with  regard  to  the  Pacific  is  the  natural 
complement  to  its  Atlantic  policy.  The  history  of  our  European  rela- 
tions for  fifty  years  shows  the  jealous  concern  with  which  the  United 
States  has  guarded  its  control  of  the  coast  from  foreign  interference, 
and  this  without  extension  of  territorial  possession  beyond  the  main- 
land. It  has  always  been  its  aim  to  preserve  the  friendly  neutrality  of 
the  adjacent  states  and  insular  possessions.  Its  attitude  toward  Cuba 
is  in  point. 


§  108.]  HAWAIIAN    ISLANDS.  489 

"Hawaii,  although  imu-h  farther  from  the  Californian  (;oast  than  is 
Cuba  from  the  Floridian  peninsula,  holds  in  the  western  sea  much  the 
same  position  as  Cuba  in  the  Atlantic.  It  is  the  key  to  the  marithne 
dominion  of  the  Pacilic  States,  as  Cuba  is  the  key  to  the  Gulf  trade. 
The  material  possession  of  Hawaii  is  not  desired  by  the  United  States 
any  more  than  was  that  of  Cuba.  But  under  no  circumstances  can  the 
United  States  permit  any  chang-t^  in  the  t(n-ritorial  control  of  either 
which  would  cut  it  adrift  from  the  American  system,  whereto  they 
both  indispensably  belong. 

''In  this  aspect  of  the  question  it  is  readily  seen  with  w^hat  concern 
this  Government  jnust  view  any  tendency  toward  introducing  into 
Hawaii  new  social  elements  destructive  of  its  necessariU^  American 
character.  The  steady  diminution  of  the  native  population  of  the 
islands,  amounting  to  some  10  per  cent,  between  1872  and  lsT8,  and 
still  continuing,  is  doubtless  a  cause  of  great  alarm  to  the  Government 
of  the  Kingdom,  and  it  is  no  wonder  that  a  solution  should  he  sought 
with  eagerness  in  any  seemingl}'  practicable  quarter.  The  problem, 
however,  is  not  to  be  met  by  a  substitution  of  Mongolian  supremacy 
for  native  control,  as  seems  at  first  sight  possible  through  the  rapid 
increase  in  Chinese  immigration  to  the  islands.  Neither  is  a  whole- 
sale introduction  of  the  coolie  element,  professedly  Anglo-Indian, 
likely  to  afford  any  more  satisfactory  outcome  to  the  difficult}'.  The 
Hawaiian  Islands  can  not  be  joined  to  the  Asiatic  system.  If  they  drift 
from  their  independent  station  it  must  1)6  toward  assimilation  and 
identification  with  the  American  system,  to  which  they  belong  by  the 
operation  of  natural  laws  and  nmst  belong  by  the  operation  of  polit- 
ical necessity.  ...  It  [the  United  States]  tirmly  l)elieves  that 
the  position  of  the  Hawaiian  Islands  as  the  key  to  the  dominion  of  the 
American  Pacific  demands  their  neutralit}^  to  which  end  it  w^ill 
earnestly  co-operate  with  the  native  Government.  And  if,  through 
any  cause,  the  maintenance  of  such  a  position  of  neutrality  should  be 
found  by  Hawaii  to  be  impracticable,  this  (fovernment  would  then 
unhesitatingly  meet  the  altered  situation  l)y  seeking  an  avowedly 
American  solution  for  the  graxe  issues  present(»d." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  (!omly,  niin.  to  Hawaii,  Dec.  1,  1881,  For. 
Kei.  1881,  685et.seq. 

Jn  a  confidential  instruction  to  ^Ir.  Conily  of  the  same  date  (  For.  Rel.  1894, 
App.  II.  1161;  MS.  Inst.  Hawaii,  II.  429),  Mr.  Blaine  said:  "There  is  little 
<loubt  that  were  the  Hawaiian  Islands,  by  annexation  or  distinct  jirotec- 
tion,  a  part  of  the  territory  of  the  I'nion,  tlieir  fertile  resouri'cs  for  the 
growth  of  rice  and  sugar  would  not  only  he  controlled  by  .Vnn'rii'an  capi- 
tal, Imt  so  profitable  a  field  of  labor  would  attract  intellitrent  workers 
thither  from  the  Tniteil  States. 

"A  purely  American  form  of  colonization  in  such  a  case  would  meet  all  the 
phases  of  the  proljlem.  Within  our  borders  could  be  found  the  capital, 
the  intelligence,  the  activity,  and  tlie  neces.sary  labor  trained  in  the  rice 
swani])s  and  cane  fields  of  the  Southern  States.  .\nd  it  may  be  well  to 
consider  Iidw,  even   in  the  chosen   alternative  of  maintaining   Hawaiian 


490  SOVEREIGNTY  I    ITS    ACQUISITION    AND    LOSS.  [§  108. 

independence,  theK'  jjrosperous  elements  coul<l  be  induced  to  go  from  our 
sliores  to  the  islands,  not  like  the  coolies,  practically  enslaved,  not  as 
human  machines,  hut  as  thinking,  intelligent,  working  factors  in  the 
advancement  of  the  material  interests  of  the  islands." 

'•Your  No.  ^17,  of  the  Sth  instant,  in  which  you  report  the  polit- 
ical tendencies  now  making  themselves  manifest  in  the  islands,  and  the 
movement  in  the  direction  of  onerous  taxation  of  capital  and  property 
to  a  degree  which  can  not  fail  to  work  injur}"  to  the  foreign  interests 
and  enterprise  which  have  built  up  Hawaiian  prosperity,  has  been 
read  with  attention. 

"While  this  Government  recognized  from  the  first  the  constitu- 
tional sovereignty  of  Hawaii,  and  still  recognizes  her  right  to  adjust 
internal  matters  of  taxation  and  revenue  on  constitutional  principles, 
3'et  it  can  not  permit  to  pass  without  very  urgent  protest  in  all  proper 
quarters  a  meastu'e  subversive  of  the  material  interests  of  so  many  of 
its  citizens  who,  on  the  faith  of  international  comity,  have  given  their 
wealth,  labor,  and  skill  to  aid  in  the  prosperity  of  Hawaii.  And  it 
makes  this  protest  the  more  earnestly,  inasmuch  as  the  treaty  relations 
between  the  two  countries  (in  which  Hawaiian  interests  were  even 
more  subserved  than  our  own)  are  such  as  to  give  the  United  States 
the  moral  right  to  expect  that  American  property  in  Hawaii  will  be 
no  more  burdened  than  would  Hawaiian  proi^erty  in  the  United 
States." 

:\Ir.  Frelinghuysen,  Sec.  of  State,  to  :\rr.  Comly,  :May  31,  1882,  For.  Rel.  1882, 
843. 

•'The  right  of  the  Hawaiian  (fovermnent  to  admit  to  or  to  exclude 
from  its  dominions  immigrants  of  any  nationality  or  race  is  not 
for  a  moment  questioned  by  this,  but  that  the  exclusive  privilege  of 
carrying  inmiigrants  who  are  admitted  to  Haw^aii  should  be  accorded 
to  any  one  company  owning  a  particular  line  of  ships,  whether  Ameri- 
can, Hawaiian,  or  foreign  to  both  coiuitries,  is  believed  to  be  in  itself 
unjust,  and,  as  1  have  already.observed.  wholly  inconsistent  with  the 
due  maintenance  of  the  treaty  of  184i>.  The  Pacitic  Mail  Steamship 
Company  have  no  right  to  demand  an  exclusive  privilege  in  such  car- 
rying trade,  but  it  may,  wnth  manifest  propriety,  under  the  terms  of 
the  treaty,  insist  that  no  discriminating  measures  against  its  vessels 
shall  be  maintained  or  })ermitted  by  the  Hawaiian  Government.'' 

Mr.   Frelinghuysen,  Sec.   of  State,  to   Mr.    Daggett,   min.  to  Hawaii,  Nov.  15, 
1883,  For.  Rel.  1883,  567,  5()8. 

■•  I  have  had  the  honor  of  receiving  your  note  of  the  18th  of  October 
last,  inclosing  a  signed  protest  on  the  part  of  the  Hawaiian  Govern- 
ment against  the  annexation  of  archipelagoes  and  islands  of  Polynesia 
})y  foreign  powers,  and  especially  by  Great  Britain,  in  behalf  of  which 
protest  the  synq)athies  of  this  Government  are  asked. 


§  1^8-]  HAWAIIAN    ISLANDS.  491 

"It  is  unnecessary  to  assure  you  that  the  sympathies  of  this  Gov- 
ernment and  the  people  of  this  country  are  always  in  favor  of  oood 
self-government  by  the  independent  conmuuiiti<>s  of  the  world. 

"While  we  could  not,  therefore,  view  with  complacency  anv  move- 
ment tendino-  to  the  extinction  of  the  national  life  of  the  intimatelv 
connected  conmionwealths  of  the  Northern  Pacitic.  the  attitude  of  this 
Government  toward  the  distant  outlyino-  o-roups  of  I'olynesjii  is  nec- 
essarily dili'erent. 

"  It  is  understood  that  the  agitation  to  which  the  protest  refers  as 
now  existing  in  Australia  contemphites  the  immediate  protection  and 
eventual  annexation  of  the  New  Hebrides,  the  Solomon  Islands,  and 
the  immediately  adjacent  groups  of  the  Australian  colonial  system. 
These  islands  are  geographically  allied  to  Australasia  rather  than  to 
Polynesia.  At  no  time  have  they  so  asserted  and  maintained  a 
separate  national  life  as  to  entitle  them  to  entrance,  ))y  treaty  stipula- 
tions and  established  forms  of  competent  self-government,  into  the 
family  of  nations,  as  Hawaii  and  Samoa  have  done.  Their  material 
development  has  been  largely  due  to  their  intercourse  with  the  great 
Australian  system,  near  which  they  lie,  and  this  Government  would 
not  feel  called  upon  to  view  with  concern  an}-  further  strengthening 
of  such  intercourse  when  neither  the  s\'mpathies  of  our  people  are 
touched  nor  their  direct  political  or  commercial  relations  with  those 
scattered  comnninities  threatened  by  the  proposed  change. 

"The  President,  before  whom  the  protest  has  been  broug-ht,  moved 
b}'  these  considerations,  does  not  regard  the  matter  as  one  calling  for 
the  interposition  of  the  United  States,  either  to  oppose  or  support  the 
suggested  measure." 

Mr.   Frelinghuysen,  Sec.  of  State,  to  Mr.  Carter,  Hawaiian  min..  Dee.  6,  1883, 
For.  Rel.  1883,'  575. 

"  I  express  my  unhesitating  conviction  that  the  intimacy  of  our 
relations  with  Hawaii  should  be  emphasized.  As  a  result  of  the 
reciprocity  treaty  of  1875.  those  islands,  on  the  highway  of  Oriental 
and  Australasian  traffic,  are  virtually  an  outpost  of  Anierican  com- 
merce and  a  stepping-stone  to  the  growing  trade  of  the  Pacitic.  The 
Polynesian  Island  groups  have  been  so  absor))ed  l)y  other  and  more 
powerful  govennnents.  that  the  .Hawaiian  Islands  are  left  almost 
alone  in  the  enjoyment  of  their  autonomy,  which  it  is  im|)ortant  for 
us  should  be  preserved.  Oui'  treaty  is  now  terminal)!*'  on  one  year's 
notice,  but  propositions  to  al)rogate  it  would  })e,  in  my  judgmcMit, 
most  ill-advised.  The  paramount  influence  we  have  there  accjuired. 
once  relin([uished.  could  only  with  difficulty  be  regained,  and  a  val- 
uable ground  of  vantage  for  ourselves  might  l)e  converted  into  a 
stronghold  for  our  commercial  competitors.  1  earnestly  recommend 
that  the  existing  treaty  stipuhitions  l)e  extended  for  a  further  term 


492  sovereignty:  its  acquisition  and  loss.         [§  108. 

of  seven  years.     A  recently  .signed  treaty  to  this  end  is  now  before 
the  Senate. 

••  The  importance  of  telegraphic  communication  between  those 
islands  and  the  United  States  should  not  be  overlooked." 

President  Cleveland,  annual  message,  Dec.  6,  1886. 

December  27.  1880,  the  legation  of  the  United  States  at  Hono- 
lulu reported  that  King  Kalakaua  had  commissioned  one  of  his  sub- 
jects as  "minister  plenipotentiary  to  the  Kings  of  Samoa  and  Tonga, 
and  the  independent  chiefs  and  peoples  of  Polynesia,"  and  that  the 
envo}'  had  departed  for  Samoa  with  a  secretary  of  legation  and  two 
attaches.  This  mission  resulted  in  the  conclusion,  in  February  and 
March,  1887,  of  a  treaty  of  "political  confederation"  between  Hawaii 
and  Samoa.  Not  long  afterwards,  however,  the  legation  reported 
that  the  special  mission  had  been  recalled  and  that  what  was  com- 
monh' known  as" 'the  Hawaiian  Polynesian  policy"  had  come  to  an 
end. " 

''The  tenor  of  your  late  dispatches  coincides  with  other  reports 
from  the  Hawaiian  Kingdom,  and  indicates  the  most  unsatisfactory^ 
and  disturbed  condition  of  affairs  in  the  government  of  that  country, 
which  renders  it  essential  that  the  strictest  vigilance  should  be  exer- 
cised by  those  charged  with  the  care  of  the  rights  of  American  citizens 
within  that  jurisdiction,  as  well  as  the  rights  of  the  United  States 
secured  under  existing  international  conventions. 

"  Whilst  regretting  deeply  the  existence  of  domestic  disorders  in 
Hawaii,  and  with  no  disposition  whatever  to  interfere  therein  or  to 
obtrude  counsel  unasked,  yet  the  consequences  which  may  possibly 
result  to  the  interests  of  American  citizens  which  have  grown  up 
under  the  extension  of  the  commerce  between  that  country  and  the 
United  States,  under  the  guaranties  of  existing  treaty,  must  not  be 
jeopardized  by  internal  confusion  in  the  government  of  these  islands, 
and  it  is  the  duty  of  the  United  States  to  see  that  these  interests  are 
not  imperiled  or  injured,  and  to  do  all  things  necessary  for  their  just 
protection. 

"The existing  treaty  between  the  United  States  and  Hawaii,  as  was 
contemjjlated  and  intended  by  the  parties  thereto,  has  created  and  fos- 
tered commercial  relations  more  intimate  in  their  nature  and  of  incom- 
parabh'  greater  volume  and  value  than  Hawaii  ever  had  or  ever  can 
have  with  any  other  government. 

"The  growth  of  this  commerce  and  the  consequent  advancement  of 
these  islands  in  wealth  and  importance  has  been  most  satisfactory  to 

"Mr.  Iluj'tings,  charge  at  Honolulu,  to  ^Ir.  Bayard,  Sec.  of  State,  Dec.  27,  1886; 
Mr.  Merrill,  luin.  to  Hawaii,  to  Mr.  Bayard,  Sec.  of  State,  March  29  and  July  13, 
1887,  For.  Rel.  1887,  566,  569,  581;  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Carter,  Hawaiian 
min.,  April  12,  1887.  MS.  Notes  to  Hawaii,  I.  119;  Mr.  Bayard,  Sec.  of  State,  to  Mr. 
Merrill,  min.  to  Hawaii,  Jan.  8,  1887,  MS.  Inst.  Hawaii,  HI.  28. 


i  108.]  HAWAIIAN    ISLANDS.  493 

the  United  States,  and  bj'  reason  of  their  geograpliical  position  and 
comparative  propinquity  to  our  own  territory  they  possess  an  interest 
and  importance  to  us  far  exceeding  that  with  which  they  can  be 
regarded  by  any  other  power.  In  the  absence  of  any  detailed  infor- 
mation from  you  of  the  late  disorders  in  the  domestic  control  of 
Hawaii,  and  the  changes  which  have  taken  place  in  the  official  corps 
of  that  Government,  I  am  not  able  to  give  you  other  than  general 
instructions,  which  ma}'  be  communicated  in  suKstance  to  the  com- 
manding officer  of  the  vessel  or  vessels  of  this  Government  in  the 
waters  of  Hawaii,  with  whom  you  will  freely  confer,  in  order  that 
such  prompt  and  efficient  action  may  ])e  taken  as  the  ciivumstances 
may  make  necessary. 

"  Whilst  we  abstain  from  interference  with  the  domestic  atiairs  of 
Hawaii,  in  accordance  with  the  policy  and  practice  of  this  Govern- 
ment, yet  obstruction  to  the  channels  of  legitimate  commerce  under 
existing  treaty  must  not  be  allow^ed,  and  American  citizens  in  Hawaii 
must  be  protected  in  their  persons  and  property  by  the  representatives 
of  their  countrv's  law  and  power,  and  no  internal  discord  must  be 
suffered  to  impair  them.  Your  own  aid  and  counsel,  as  well  as  the 
assistance  of  the  officers  of  our  Government  vessels,  if  found  neces- 
sar}-,  will  therefore  be  prompth'  afforded  to  promote  the  reign  of  law 
and  respect  for  orderh'  government  in  Hawaii. 

•'As  is  well  known,  no  intent  is  cherished  or  policy  entertained  by 
the  United  States  which  is  otherwise  than  friendly  to  the  autonomical 
control  and  independence  of  Hawaii,  and  no  other  member  of  the 
famih-  of  nations  has  so  great  and  immediate  an  interest  in  the  welfare 
and  prosperity  of  Hawaii  on  such  a  basis  as  this  Republic. 

"  The  vast  line  of  our  national  territor}"  on  the  Pacific  coast,  and  its 
neighborhood  to  the  Hawaiian  group,  indicate  the  recognized  predom- 
inance of  our  interests  in  the  region  of  these  islands. 

"This  superiority  of  interest  in  the  welfare  of  the  Hawaiian  Islands 
is  accompanied  b}"  an  appreciation  of  the  right  of  these  friendly 
inhabitants  and  their  Government  to  our  good  offices,  which  we  freely 
tender  whenever  they  can  be  efficacious  in  securing  the  safety  and 
promoting  the  welfare  of  that  island  group." 

Mr.  Bayard,  ^ec.  of  .State,  to  Mr.  Merrill,  niin.  to  Hawaii,  July  12,  1887,  For. 
Rei.  1887,  580.  See,  also,  Mr.  Bayanl,  Sec.  of  State,  to  Mr.  Phelps,  inin. 
to  England,  May  13,  1887,  referring  to  the  visit  of  Queen  Kapiolani,  con- 
sort of  King  Kalakaua,  to  Washington,  en  route  to  Knglan<l  to  attend  the 
Queen's  Jubilee,  (iueen  Ka|>iolani  was  attended  l)y  the  Princess  IJliuo- 
kalani,  sister  of  tlie  King,  and  her  husband,  (ieneral  Doininis,  who  was 
understood  to  becharge*!  with  negotiations  concerning  steanishij)  facilities 
and  a  loan.  (MS.  Inst.  Great  Britain,  XXVIII.  320.  )  An  account  of 
Queen  Kapiolani's  reception  in  Wa.«hingt(in  is  given  in  ^Ir.  Bayard,  Sec. 
of  State,  to  Mr.  Merrill,  niin.  to  Hawaii,  ^lay  2(5,  1887,  MS.  Inst.  Hawaii, 
III.  38. 


494  sovereignty:  it;^  acquisition  and  loss.  [§108. 

In  1888  tho  term  of  seven  years  for  which  the  reciprocity  treaty  was  to 
endure  expired,  and  the  treaty  became  terminable  on 

^  ^.^  '   twelve  months'  notice  bv  either  party.     The  subiect 

procity  treaty.  .   .        ,     ,    .  .        '  t  i  ^       ^^\ 

()t  its  dehnite  extension  was  discussed  not  only  diplo- 
matically, but  also  in  Cono;ress."  A  convention  dehniteh'  extending 
it  for  seven  years,  after  which  it  was  again  to  'become  terminable  on 
twelve  months'  notice,  was  concluded  at  Washington,  December  6, 
1884.  Owing  to  opposition,  springing  chiefly  from  sugar  interests  in 
the  United  States,  but  also  to  some  extent  from  constitutional  objec- 
tions to  reciprocit}'  treaties  in  general,  the  ratifications  of  this  conven- 
tion were  not  exchanged  until  November  *,>,  1887.'^ 

By  an  amendment  inserted  as  Art.  II.  by  the  United  States  Senate, 
the  King  of  Hawaii  granted  to  the  Government  of  the 
United  States  •"  the  exclusive  right  to  enter  the  harbor 
of  Pearl  River  in  the  island  of  Oahu,  and  to  establish  and  maintain 
there  a  coaling  and  repair  station  for  the  use  of  vessels  of  the  United 
States."  and  to  that  end  to  "  improve  the  entrance  to  said  harbor,  and 
do  all  other  things  needful  to  the  purpose  aforesaid."''  Before  the 
exchange  of  ratifications  the  Hawaiian  Government  sought  an  explana- 
tion of  this  i)rovision.  to  the  effect  that  it  did  not  and  was  not  intended 
"to  invade  or  diminish  in  any  way  the  autonomous  jurisdiction  of 
Hawaii  while  giving  to  the  United  States  the  exclusive  right  of  the 
use  of  Pearl  Harl)or  stipulated  therein,  for  the  sole  purpose  stated  in 
the  article,  and,  further,  that  the  Article  II.  of  the  convention,  and  the 
privileges  conveyed  l)y  it.  will  cease  and  determine  Avith  the  termina- 
tion of  the  treaty  of  1875.  under  the  conditions  fixed  by  this  conven- 
tion."'' The  Department  of  State,  while  disclaiming  any  power  "to 
(jualify.  expand,  or  explain  "  the  amendment  of  the  Senate,  declared 
that  •'  no  am])iguity  or  obscurity  "  was  observable  in  it,  and  that  there 
was  discerned  in  it  "no  subtraction  from  Hawaiian  sovereignty  over 
the  harbor  to  which  it  relates,  nor  any  language  importing  a  longer 
durati<jn  "  than  that  prescribed  for  the  treaty  of  1875  as  extended,' 

On  Deceml)ei-  23,  1887,  Sir  Lionel  West.  British  minister  at  Wash- 
ington, handed  to  Mr.  Bayard  the  following  memorandum: 

"See  Houi^e  Keport  1S()0,  47  Cong.  2  sepf^. ;  Senate  Keport  76,  48  Cong.  1  f^ess., 
part.<  1  and  2. 

''  See  report  of  Mr.  Tucker,  March  li,  1887,  H.  Report  4177,  49  Cong.  2  sess.,  ptating 
constitutional  objections.  See,  as  to  the  faihire  of  the  ratifications  of  the  Marcy 
reciprocity  treaty  of  1855,  Mr.  Sewanl,  Sec.  of  State,  to  Mr.  McCuUoch,  Sec.  of 
Treas.,  Jan.  17,  1867,  75  MS.  Dom.  Let.  105. 

'•For.  Kel.  1887,  588. 

'Olr.  Carter,  Hawaiian  niin.,  to  ^Ir.  15ayar<l,  .*^ec.  of  State,  Sept.  28,  1887,  For.  Rel. 
1887,  58it,  591. 

'  Mr.  I'ayanl.  Sec  of  State,  to  Mr.  Carter,  Hawaiian  minister,  Sept.  2'.^,  1887,  For. 
Kel.  1SS7.  591.  See,  also,  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Merrill,  Min.  to  Hawaii, 
Sept.  26,  1887,  MS.  Inst.  Hawaii,  III.  56. 


§  108.]  HAWAIIAN    ISLANDS.  4^5 

"England  and  France  by  the  convention  of  November  28,  1848,  are 
bound  to  consider  the  Sandwich  Islands  as  an  independent  State  and 
never  to  take  possession,  either  directly  or  under  the  title  of  a  protec- 
torate or  any  other  form,  of  any  part  of  the  territory  of  which  the}^ 
are  composed. 

"'The  best  way  to  secure  this  object  would,  in  the  oi)ini<)n  of  Her 
Majesty's  Government,  ])e  that  the  powers  chietiy  inteivstcd  in  the 
trade  of  the  Pacific  should  join  in  making  a  formal  declai'atioii  similar 
to  that  of  18-43  above  alluded  to,  and  that  the  Ignited  States  (ioxcrn- 
ment  should,  with  P^ngland  and  Germany,  o-uarantoe  the  neutrality 
and  equal  accessibility  of  the  islands  and  their  harbors  to  the  ships  of 
all  nations  without  preference."" 

To  this  communication  Mr.  Bayard  replied: 

"' Personal.]  '"Department  of  State. 

'•  WashiiKjton,  J^^rhriidrt/  /•>,  ISSS. 

"'Dear  Sir  Lionee:  .Vfter  reading-  the  memorandum  of  Lord  Salis- 
bury in  relation  to  the  Sandwich  Islands,  it  does  not  occur  to  me  that 
I  can  add  anj'thing  to  what  I  stated  to  you  orally  in  our  interview  on 
the  23d  of  December  last,  when  you  iirst  sent  it  to  me. 

"I  was  glad  to  find  that  you  quite  understood  and  had  conveyed  to 
3'our  Government  the  only  signiticance  and  meaning  of  the  Pearl 
Harbor  concession  by  the  Hawaiian  Government,  as  provided  in  the 
late  treaty  of  that  (jovermnent  with  the  United  States,  and  that  it 
contained  nothing  to  impair  the  2)olitical  sovereignty  of  Hawaii. 

""The  existing  treaties  of  the  United  States  and  Hawaii  create,  as 
you  are  aware,  special  and  important  reciprocities,  to  which  the  present 
material  prosperity  of  Hawaii  mav  be  said  to  owe  its  existence,  and 
by  one  of  the  articles  the  cession  of  an}-  part  of  the  Hawaiian  territory 
to  any  other  government  without  the  consent  of  the  United  States  is 
inhibited. 

"In  view  of  such  existing  arrangements  it  does  not  seem  needful 
for  the  United  States  to  join  with  other  governments  in  their  guaran- 
ties to  secure  the  neutrality  of  Hawaiian  territory,  nor  to  provide  for 
that  e(iual  accessibility  of  all  nations  to  those  ports  which  noAv  exists." 

fhily  3<>,  l88i*.  an  insurrection  under  the  lead  of  two  Hawaiian  half- 

^,„„„  castes,  named  Ko))ert  W.  Wilcox  and  R()t)ert  Bovd, 

Constitutionof  1887;  '  ti  i    i  t  i     '     j 

insurrection   of  took  place  at  Honolulu.     It  was  soon  suppressed,  and 

^^^^-  during  the  disturbance  a  foi-ce  of  marines  from  the 

U.  S.  S.  ^[(I(iiH.'<  was  landed  by  permission,  with  a  machine  gun,  to 
protect  life  and  property  at  the  legation  and  in  the  city,  their  appear- 
ance on  the  streets  having  a  favora])l(^  etiect  on  the  population.  Soon 
after  the  attempted  revolution.  t\w  supreme  coui't  of  Hawaii  ren- 
dered a  d(>cisi()n  to  the  etiect  that  the  king  could  govern  only  through 


Fur.  Rel.  1894,  App.  II.  24. 


496  sovereignty:  its  acquisition  and  loss.         [§  108. 

hi.s  ca})inet.  This  decision  was  rendered  under  the  constitution  which, 
as  the  result  of  '"  an  uprisings  of  nearW  the  whole  foreign  population, 
supported  by  the  better  class  of  natives."  King"  Kalakaua  had  accepted 
and  signed  on  June  30,  1887;  a  constitution  designed  to  substitute,  for 
the  personal  rule  of  the  king,  government  by  a  cabinet  responsible 
only  to  the  legislature."  While  govennnent  was  more  securely  con- 
ducted under  this  system,  yet  a  certain  native  antagonism  was  exhib- 
ited toward  it,  not  only  because  it  curtailed  the  powers  of  the  native 
king  but  also  because  it  increased  the  political  privileges  of  the  foreign 
residents,  who  were  allowed  to  enjoy  political  rights  without  renouncing 
their  foreign  allegiance  and  citizenship.'^ 

In  .lanuary,  1891,  King  Kalakaua,  who  had  lately  arrived  in  the 
T^    fv,   <•  TT  1  V      ■  United  States  on  a  friendly  visit,  died  at  San  Fran- 
successionofLiii- CISCO.      The  Princess   Lilmokalani,   who   had   accom- 
uokaiani.  panied   Queen   Kapiolani   at  the   celebration   of    the 

Victorian  jubilee  in  London  in  1887,  and  who,  when  Kalakaua  departed 
for  San  Francisco,  was  appointed  regent  during  his  absence,  was  pro- 
claimed Queen. ^'     She  was  duly  recognized  by  the  United  States.-' 
In  January,  1893,  a  revolution  took  place  at  Honolulu.     The  abdica- 
tion of  the  Queen  was  secured  and  a  provisional  gov- 
monarciiy,  1893;  crnment,  at  the  head  of  which  was  Judge  Sanford  B, 
treaty  of  annexa-  Dole,  was  set  up,  to  continue  till  annexation  to  the 
United  States  should  be  accomplished.     Februar}^  14, 
1893,  a  treaty  of  annexation  was  signed  at  Washington  by  Mr.  Foster, 
Secretary  of  State,  and  five  commissioners  on  the  part  of  the  provisional 
gov^ernment.     It  was  submitted  by  President  Harrison  to  the  Senate 
February  15,  1893.''     In  his  message  of  transmission  he  stated  that  the 

"  For.  Rel.  1894,  App.  TI.  6(54. 

''For.  Rel.  1894,  App.  11.  1168. 

'For.  Rel.  1891,  644,  648,  649;  id.  1894,  Apj).  II.  26,  1166. 

'/  Mr.  Blaine,  Sec.  of  State,  to  Mr.  Steveiif^,  luiii.  to  Hawaii,  February  28,  1891,  For. 
Rel.  1894,  Ai)p.  II.  1176.  See,  also,  Mr.  Foster,  Sec.  of  State,  to  Sec.  of  Navy,  Nov. 
5,  1892,  189  MS.  Doin.  Let.  98. 

'^President  Harrison,  in  his  annual  message  of  Dec.  6, 1889,  said:  "  Our  relations 
with  Hawaii  have  been  such  as  to  attract  an  increased  interest,  and  must  continue  to 
do  so.  I  deem  it  of  great  importance  that  the  projecte*!  submarine  cable,  a  survey 
for  which  has  been  made,  should  1)6  promoted.  Both  for  naval  and  commercial 
uses  we  should  have  (luick  communication  with  Honolulu.  We  should  l:)efore  this 
have  availed  ourselves  of  the  concession,  made  many  years  ago  to  this  Government, 
for  a  harbor  and  naval  station  at  Pearl  River.  Many  evidences  of  the  friendliness 
of  the  Hawaiian  (Jovermiient  have  l)een  given  in  the  past,  and  it  is  gratifying  to 
believe  that  the  advantage  and  necessity  oi  a  continuance  of  very  close  relations  is 
appreciated."  See,  also.  President  Harrison's  annual  message  of  Dec.  9,  1891.  In 
1890  Mr.  Carter,  the  Hawaiian  minister  at  Washingtim,  was  appointed  by  his  govern- 
ment as  a  ilelegatc  to  tlu>  International  American  Conference,  but  too  late  to  permit 
bini  to  take  ])art  in  its  proceedings.  (Mr.  Blaine,  Sec.  of  State,  to  Mr.  Carter, 
Hawaiian  miii.,  May  :\,  1890,  MS.  Notes  to  Hawaii,  I.  154.) 


§  1^8.]  HAWAIIAN    ISLANDS.  497 

overthrow  of  the  monarchy  was  not  in  any  way  promoted  by  the 
United  States,  but  had  its  origiji  in  what  seemed  to  be  a  reactionary 
and  revohitionary  policy  on  the  part  of  Queen  Liliuokalani,  which  put 
in  serious  peril  not  only  the  large  and  preponderating  interests  of  the 
United  States  in  the  islands,  but  all  foreign  interests,  and  indeed  the 
decent  administration  of  civil  affairs  and  the  peace  of  the  islands. 
President  Harrison  further  said:  '* 

"It  is  quite  evident  that  the  monarchy  had  become  effete  and  the 
Queen's  government  so  Aveak  and  inadequat(>  as  to  be  the  prey  of  de- 
signing and  unscrupulous  persons.  The  restoration  of  Queen  Liliuok- 
alani to  her  throne  is  undesirable,  if  not  impossible,  and  unless  actively 
supported  by  the  United  States  would  t)e  accompanied  by  serious  dis- 
aster and  the  disorganization  of  all  Inisiness  interests.  The  influence 
and  interest  of  the  United  States  in  the  islands  must  be  increased  and 
not  diminished. 

■"Only  two  courses  are  now  open;  one  the  establishment  of  a  pro- 
tectorate by  the  United  States,  and  the  other,  annexation  full  and  com- 
plete. I  think  the  latter  course,  which  has  been  adopted  in  the  treaty, 
will  be  highly  promotive  of  the  best  interests  of  the  Hawaiian  people, 
and  is  the  only  one  that  will  adequately  secure  the  interests  of  the 
United  States.  T'hese  interests  are  not  wholly  selfish.  It  is  essential 
that  none  of  the  other  great  powers  shall  secure  these  islands.  Such 
a  possession  w  ould  not  consist  with  our  safety  and  with  the  peace  of 
the  world, 

"  This  view  of  the  situation  is  so  apparent  and  conclusive  that  no  pro- 
test has  been  heard  from  any  government  against  proceedings  looking 
to  annexation.  P^very  foreign  repi'esentative  at  Honoluhi  promptly 
acknowledged  the  provisional  government,  and  I  think  there  is  a  gen- 
eral concurrence  in  the  opinion  that  the  deposed  queen  ought  not  to  be 
restored.     Prompt  action  upon  this  treaty  is  very  desirable.'- 

The  details  of  the  transactions  were  more  fuUv  set  forth  in  a  report 
of  Mr.  Foster  to  the  President.  Although  there  had  existed  for  a 
long  while  an  unsettled  state  of  affairs,  the  change  in  the  government 
of  Hawaii  was,  said  Mr.  Foster,  entirely  imexpected  so  far  as  the 
United  States  was  concerned;  and  the  American  minister  at  Honolulu, 
Mr.  Stevens,  had  at  no  time  been  instructed  with  regard  to  his  course 
in  the  event  of  a  revolutionary  uprising.  The  change  was  also 
unlooked  for  by  the  commander  of  the  U.  S.  S.  Boxfon,  who,  under 
the  impression  that  all  disturbances  had  been  allayed,  had  a  few  da3's 
previously  quitted  the  capital  with  the  American  minister  for  a  brief 
excursion  to  a  niMghboring  island.  On  his  return  to  Honolulu,  Janu- 
arv  4,  18!»:>.  he  found  affairs  in  a  crisis.  An  armed  conflict  seemed 
possible  at  any  moment,  l)ut   it  was   not   til!   late  in   the  afternoon  of 

"For.  Rcl.  lSit4,  A])]..  II.  198. 

H.  Doc.  TmI y>-2 


498  sovereignty:  its  acquisition  and  loss.  [§108. 

Monday,  January  16,  after  the  request  for  protection  had  been  made 
In'  many  oitizen.s  of  the  United  States,  that  a  force  of  marines  was 
landed  from  the  R<»<ton  by  direction  of  the  minister  and  in  conformity 
with  the  standing  instructions  which,  for  man}'  years,  had  authorized 
the  na^•al  forces  of  the  United  States  to  cooperate  with  the  legation 
for  the  protection  of  American  lives  and  property  in  case  of  imminent 
disorder.  The  marines  when  landed  took  no  part  whatever  toward 
influencing  the  course  of  events.  They  remained  isolated  and  incon- 
spicuous till  the  provisional  government  had  succeeded  and  had 
organized  an  adequate  protective  force,  nor  was  an\'  public  recognition 
accorded  to  the  provisional  government  by  the  United  States  minister 
till  the  Queen  had  abdicated  and  the  provisional  government  had 
secured  *'  efl'ective  possession  of  the  government  buildings,  the  arch- 
ives, the  treasury,  the  ]>arracks.  the  police  station,  and  all  potential 
machinery  of  the  government.""" 

President  Cleveland  on  ]March  9,  1893,  withdrew  the  treaty  from  the 
Senate  for  examination.''     At  the  same  time  he  sent 

,^    _    _        Mr.  »James  H,   Blount,  latelv  chairman  of  the  House 
the  treaty.  .  .    '  "  .  . 

Committee   on    ioreign  Atfairs,  to  the   islands   as  a 

special  commissioner.  In  all  matters  pertaining  to  the  relations  of  the 
United  States  to  the  existing  or  other  government  of  the  islands,  and 
the  protection  of  American  citizens  therein,  the  authority  of  Mr. 
Blount  was  stated  to  be  "paramount;""  but  the  minister,  Mr.  Stevens, 
was  to  continue  in  the  conduct  of  the  usual  functions  of  the  legation, 
not  inconsistent  with  Mr.  Blount"s  powers,  until  further  notice.  On 
Ma}'  'I'l  Mr.  Blount  was  appointed  envoy  extraordinar}"  and  minister 
plenipotentiary  to  the  Hawaiian  Islands,  with  a  letter  of  credence 
to  the  president  of  the  provisional  government.'  On  and  after  April 
6  ]Mr.  Blount  made  numerous  and  full  reports  of  the  results  of  his 
investigation.''  Their  purport  was  summed  up  in  a  report  of  Mr. 
Gresham,  Secretary  of  State,  to  President  Cleveland,  October  18, 
1893.  The  statements  made  in  Secretary  Foster's  reports  were,  said 
Mr.  Gresham,  based  upon  information  received  from  ^Ir.  Stevens  and 
the  Hawaiian  special  commissioners.  But,  according  to  the  evidence 
contained  in  ]SIr.  Blount's  reports,  those  statements  were  '""contra- 
dicted l)y  declarations  and  letters  of  President  Dole  and  other  annex- 
ationists, and  l)y  Mr.  Steyens"s  own  verlial  admissions.'"  The  pro- 
visional goverinnent,  said  Mr.  Gresham,  was  recognized  when  it  had 
little  other  than  a  paper  existence,  and  "when  the  legitimate  govern- 


'' Report  of  Mr.  Foster,  Sec.  of  State,  8.  Ex.  Doc.  76,  51  Con},'.  2  sess. ;  For.  Rel. 
1894,  Ap]).  II.  198-20.O.  See,  also,  .Mr.  Foster,  Sec.  of  State,  to  Mr.  Phelp.s,  min.  to 
fierinany,  tel.,  Feb.  1,1898,  MS.  Inst.  (Teriiuiny.  XVIII.  ().54. 

''For.  Rel.  1894,  App.  II.  1190. 

'For.  Rel.  1894,  Aj.)..  II.  4()7,  118.5.  1187.  1188. 

''For.  Rel.  1894,  Apj).  II.  470-1150. 


§  108.]  HAWAIIAN    ISLANDS.  499 

ment  was  in  full  poyyession  and  control  of  the  palace,  the  barracks, 
and  the  police  station;"  and  the  presence  of  the  American  troops,  who 
were  landed  without  permission  of  the  existing  oov^ernment,  was  used 
for  the  purpose  of  inducing  the  surrender  of  the  Queen,  who  abdi- 
cated under  protest  with  the  understanding  that  her  case  would  be 
submitted  to  the  President  of  the  United  States.  In  conclusion.  Mr. 
Gresham  said: 

'•  Should  not  the  great  wrong  done  to  a  feeble  })ut  independent  state 
by  an  abuse  of  the  authority  of  the  United  States  be  undone  by 
restoring  the  legitimate  government  i  Anything  short  of  that  will  not, 
1  respectfully  submit,  satisfy  the  demands  of  justice.  .  .  .  Our 
Government  was  the  first  to  recognize  the  independence  of  the  islands, 
and  it  should  be  the  last  to  aci^uire  sovereignty  over  them  by  force 
and  fraud.""" 

On  the  day  on  which  this  report  was  made  Mr.  Gresham  instructed 
Mr,  Willis,  who  had  been  appointed  to  succeed  Mr. 
the  Q.U  n  ""  Blount  as  minister  to  the  islands,  that  the  President 
would  not  send  back  the  treaty  to  the  Senate  for  its 
action.  Mr.  Willi.-s  was  directed  to  acquaint  the  Queen  with  this 
determination,  and  to  make  known  to  her  the  President's  regret  that 
"  the  reprehensible  conduct  of  the  American  minister  and  the  unauthor- 
ized presence  on  land  of  a  military  force  of  the  United  States  obliged 
her  to  surrender  her  sovereignty,  for  the  time  being,  and  rely  on  the 
justice  of  this  Government  to  undo  the  flagrant  wrong."  ]Mr,  Willis 
was,  however,  also  to  inform  the  Queen  that  the  President  would 
expect  her,  when  reinstated,  to  pursue  a  magnanimous  course  by 
granting  fidl  amnest}^  to  all  who  participated  in  the  movement  against 
her  and  to  assume  all  obligations  created  by  the  provisional  govern- 
ment. Having  secured  the  Queen's  assent  to  this  course,  Mr.  Willis 
was  then  to  advise  the  provisional  government  of  the  President's 
decision,  which  their  action  and  that  of  the  Queen  were  understood  to 
have  devolved  upon  him,  and  of  his  expectation  that  the}'  would 
promptly  relinquish  to  her  her  constitutional  authority.  Should  the 
Queen  decline  to  pursue  the  course  suggested,  or  .  hould  the  provisional 
government  refuse  to  abide  by  the  President's  decision,  Mr.  Willis  was 
to  report  the  facts  and  await  further  instructions.  He  was  suV)se- 
quently  directed  to  inform  the  Queen  that  the  President  could  not  use 
force  to  restore  her  without  authorit}'  of  Congress.^ 

When  Mr.  Willis,  on  November  13,  1803,  made  to  the  Queen  the 
conmiunication  with  which  he  was  intrusted,  she  refused  to  grant  an 
amnestv  to  those   who  had   been  instrumental   in  the  overthrow  of 


«F()r.  Kel.  1894,  App.  II.  459,  463.  For  the  full  corresixjiidencf  respci'ting  affairs 
in  Hawaii,  see  S.  Ex.  Doc8.  13,  46,  57,  65,  77;  H.  Ex.  Docs.  47,  48,  70,  76,  79,  95,  112, 
140;  S.  Report  227,  and  H.  Report  243,  parts  1  and  2— all  53  Cong.  2  ses;^. 

I'Foi:  Rel.  1894,  App.  II.  463,  465. 


500  sovereignty:  its  acquisition  and  loss.         [§108. 

her  government.  "1  have  no  legal  right  to  do  that,"  she  said,  "and  I 
would  not  do  it.  These  people  were  the  cause  of  the  revolution  and 
constitution  of  1S87.  There  will  never  be  any  peace  while  they  are  here. 
They  nuist  be  sent  out  of  the  country,  or  punished,  and  their  property 
confiscated. "'  The  legal  objection  mentioned  by  the  Queen  was  sup- 
posed to  relate  to  the  provision  of  the  penal  code  by  which  death  and 
confiscation  of  property  were  made  the  penalty  of  treason.  In  view 
of  the  nature  of  the  Queen's  response  Mr.  AVillis  awaited  further 
instructions.  A  month  later  the  Queen  gave  her  unqualified  assent  in 
wi'iting  to  the  conditions  suggested  by  President  Cleveland/'  but  the 
provisional  government  refused  to  acquiesce  in  his  conclusion,  on  the 
ground  (1)  that  it  involved  an  inadmissible  interference  in  the  domestic 
affairs  of  Hawaii,  and  with  the  provisional  government,  which  had  been 
formally  recognized  and  treated  with  by  the  United  States;  (2)  that 
there  was  no  understanding  on  either  side  to  submit  the  question  of 
the  restoration  of  the  Queen  to  the  President  of  the  United  States; 
(3)  that  ]\Ir.  Blount's  report,  on  which  the  President's  conclusion  was 
based,  had  not  been  communicated  to  the  provisional  government,  and 
that  there  had  not  been  such  an  investigation  and  hearing  of  the  case 
as  would  be  essential  to  the  formation  of  a  correct  opinion:  (4)  that  the 
revolution  of  January,  1893,  was  the  result  of  an  attempted  coiij)  d'etat 
of  the  Qiieen.  who  sought  to  overthrow  the  constitution  of  1887,  and 
that  it  would  have  taken  place  if  the  United  States  forces  had  been 
absent.'' 

Meanwhile,  President  Cleveland  had  submitted  the  matter  to  Con- 
gress in  a  message,  dated  December  18, 1893.^    Refer- 
President    cieve-    j.j,^^    ^-q   his   course    in   withdrawing    the   treaty   of 

tT"   !»™!!.no  '    annexation   from  the  Senate,  he  stated  that  he  had 
Dec.  18,  1893. 

))een  mfluenced  (1)  by  the  "contemplated  departure 
from  unbroken  American  tradition  in  providing  for  the  addition  to 
our  territory  of  islands  of  the  sea  more  than  2,000  miles  removed 
from  our  nearest  coast."  and  (2).  while  that  consideration  might  not 
of  itself  "call  for  interference  with  the  completion  of  a  treaty  entered 
upon  by  a  previous  administration,"  by  the  fact  that  it  appeared  from 
the   documents   accompanying    the    treaty,    when   submitted   to   the 


"  For.  Rel.  1894,  App.  II.  1242,  1262,  1269,  1270. 

''YoT.  Rel.  1894,  App.  II.  1276-1282. 

'In  his  annual  message,  Dec.  4,  1893,  President  Cleveland  referred  to  the  over- 
throw of  the  native  government  in  Hawaii,  the  negotiation  of  the  treaty  of  annexa- 
tion and  his  withdrawal  of  it  from  the  Senate,  the  appointment  of  Mr.  Blount  and 
the  re.sult  oi  his  investigations,  and  the  giving  of  "appropriate  instructions"  to  the 
new  minister  to  Hawaii  with  a  view  "to  undo  the  wrong  that  had  been  done  by 
those  rei>resenting  us  and  to  restore  as  far  as  practicaljle  the  status  existing  at  the 
time  of  our  forcilde  intervention."  He  stated  that  additional  a<lvices  were  soon 
expected,  and  that  when  received  they  would  be  communicated  to  Congress  with  a 
special  message. 


§  108.]  HAWAIIAN    ISLANDS.  501 

Senate,  "that  the  ownership  of  Hawaii  was  tendered  to  us  by  a  pro- 
visional government  set  up  to  succeed  the  constitutional  ruler  of  the 
islands,  who  had  been  dethroned,  and  it  did  not  appear  that  such  pro- 
visional g-overnnient  had  the  sanction  of  either  popular  revolution  or 
sutirage.'*  Two  other  features  of  the  transaction,  he  said,  naturall}^ 
attracted  attention;  one  was  "the  extraordinary  haste — not  to  say 
precipitancy — characterizing-  all  the  transactions  connected  with  the 
treaty.""  Between  the  ""initiation  of  the  scheme  for  a  provisional 
government  in  Hawaii  on  the  l-ith  day  of  January  and  the  submission 
to  the  Senate  of  the  treaty  of  annexation  i-oncluded  with  such  Govern- 
ment, the  entire  interval  was  thirty-two  days,  iifteen  of  which  wore 
spent  by  the  Hawaiian  commissioners  in  their  journey  to  Washing- 
ton.'' Upon  the  evidence  before  him.  President  Cleveland  expressed 
the  conclusion  that  Hawaii  was  taken  possession  of  ])v  the  United 
States  forces  ""without  the  consent  or  wish  of  the  Goverimient  of  the 
islands,  or  of  anybody  else  so  far  as  shown,  except  the  United  Stiites 
minister;'*  that  the  provisional  government  was  recognized  by  the 
United  States  minister  pursuant  to  |jrior  agreement,  at  a  time  when 
it  was  "neither  a  government  de  facto  nor  de  juref  that  the  Queen 
was  then  in  full  possession  of  all  the  powers  of  government,  and  that 
she  was  induced  to  abdicate,  with  the  concurrence  of  the  representa- 
tives of  the  provisional  government,  with  the  undersfamding  that  her 
cause  would  thereafter  be  reviewetl  at  Washington. 

When  this  message  was  sent  in,  information  had  been  received  of 
the  refusal  of  the  Queen  to  accede  to  the  conditions  prescribed  by  the 
President  for  her  restoration,  but  not  of  her  later  accpiiescence,  which 
had  just  then  been  expressed.  The  President  referred  to  the  check 
thus  given  to  his  plans,  and  concluded  with  the  assurance  that  he 
should  1)0  "much  gratified  to  cooperate  in  any  legislative  i)lan  which 
may  be  devised  for  the  solution  of  the  problem  before  us  which  is  con- 
sistent with  American  honor,  integrity,  and  morality."" 

March  15,  185)4,  an  act  was  passed  by  the  provisional  government  to 

provide  for  the  election  and  assembling  of  delegates 

Formation  of  con-  ^^^   .^  constitutional  convention.      Such    a   convention 

stitntionairepub-  ^^^^^  .^^  Honolulu  May  80,  1894.     It  adjourned  on  the 

r)th    of   the    following   July,   having  l)een    in    session 

twenty-four  days,  and  adopted  a  constitution  which  was  })rochiimod 

on  the  Ith  of  July.'' 

"Since  connnunicating  the  voluminous  coi-rospondence  in  regard  to 
Hawaii  and  the  action  taken  by  the  Senate  and  House  of  Representa- 
tatives  on  certain  (juestions  sulnnitted  to  the  judgment  and  wider  dis- 
cretion of  Congress,  the  organization  of  a  govt'rnmont  in  j)iace  of  the 
provisional  arrangement  which  followed  the  deposition  of  the  Queen 

"For.  Kel.  1892,  App.  II.  445-458,  12H2. 
2* For.  Kel.  1894,  App.  II.  1317,  1350. 


502  sovereignty:  its  acquisition  and  loss.         [§108. 

has  been  jimiouiieed  with  evidence  of  its  effective  operation.  The  rec- 
ognition usual  in  such  cases  has  l)een  accord(>d  the  new  Government."'' 

January  1>,  1895,  President  Cleveland  submitted  to  Congress  a  mes- 
sage in  relation  to  the  desire  of  the  Hawaiian  Government  to  lease 
Necker  Island,  one  of  the  uninhabited  islands  belonging  to  the  group, 
as  a  station  for  a  submarine  cable  to  l)e  laid  from  Canada  to  Australia, 
with  a  connection  })etween  that  island  and  Honolulu.  It  was  admitted 
that  by  the  reciprocity  treaty  the  lease  could  not  ])e  effected  without 
the  consent  of  the  Ignited  States;  but,  in  view  of  "the  advantages  to 
be  gained  by  isolated  Hawaii  through  telegraphic  communication  with 
the  rest  of  the  world,"  it  was  recommended  that  the  request  of  the 
Hawaiian  Government  be  granted.''  The  necessary  consent  was  not 
given. 

In  January.  1895,  a  native  revolt  was  attempted  near  Honolulu,  led 

bv  the  "half-white  Hawaiian  rebels,  Nowlein,  Bertie- 
Native  revolt,  Jan.      '  -,5,7-  1       ,1  „,.      tj.  il      •       •    j.       j." 

,--_  mann,  Warren,  and  others.    '     It  was  their  intention 

to  march  on  Honolulu  on  Monday,  the  7th  of  the  month. 
A  police  raid,  however,  on  Bertlemann's  house  at  Waikiki,  disconcerted 
their  plans.  The  Government  took  prompt  and  vigorous  measures, 
and  instituted  on  January  17  a  military  commission  of  seven  mem- 
bers, martial  law  having  been  declared.  By  the  end  of  January,  38 
persons  had  been  tried,  of  whom  five  claimed  to  be  citizens  of  the  United 
States  and  one  an  Englishman,  while  the  rest  were  half-castes  and 
Hawaiians.  Various  persons  were  also  expelled.  The  ex-Queen  was 
arrested  and  held  a  prisoner  in  the  executive  Iniilding,  formerly  the 
palace.  On  the  2I:th  of  Januarv  she  sent  the  Government  a  letter,  dis- 
claiming any  connection  with  the  rev^olt,  recognizing  the  Republic,  and 
renoiuicing  all  claims  and  pretensions,  political  or  otherwise,  "except- 
ing only  such  rights  and  privileges  as  belong  to  me  in  common  with 
all  private  citizens  or  residents  in  the  Republic  of  Hawaii;"  and  she 
also  presented  an  oath  of  allegiance  to  the  Republic.''  Martial  law  was 
maintained  till  March  18,  1895.'  Among  those  convicted  b}^  the  mili- 
tary court  of  complicity  in  the  attempted  uprising  was  ex-Queen 
Liliuokalani.  In  October,  1896,  she  received  a  full  pardon,  relieving 
her  of  a  ^5,0U(i  tine  imposed  by  the  court  and  restoring  her  to  all  the 
rights  of  Hawaiian  citizenship.-^  This  appears  to  have  constituted  the 
tinal  chapter  in  the  history  of  the  revolt.'/ 

"Pre^iident  Cleveland,  uniuial  niei^Hagje,  Dec.  3,  1894. 

''For.  Rel.  1894,  App.  II.  1875. 

'•For.  Rel.  1895,  II.  818,  et  He<i. 

'/For.  Rel.  1895,  II.  820-825. 

'For.  Rel.  1895,  II.  818-8(57.  See  also  For.  Rel.  1894,  App.  II.  1.391,  1396.  Feb.  16, 
1895,  ^Ir.  Willis,  United  State.s  minister  at  Honolulu,  reported  that  about  a  hundred 
persons  had  been  tried  by  the  commission,  and  that  there  were  about  two  hundred 
political  ])risoners  besides.     (For.  Rel.  1895,  II.  832.) 

.''For.  R»-l.  1896,  .".88. 

;/Rei>ort  of  Mr.  Olney,  Sec.  of  State,  to  the  President,  Dec.  7,  1896,  For.  Rel.  1896, 
Ixxv. 


§  108.]  HAWAIIAN    ISLANDS.  503 

B\^  article  32  of  the  constitution  promulgated  in  1894,  the  President 

of  the  Republic  of  Hawaii  was  expressly  authorized 

Signature    of   an-  ,  i        -^u  ^.  i    \.  .,      '^     ,  . 

nexation  treaty,    '^""  empowered,  With  the  approval  of  the  cabinet,  *•  to 

June  16,  1897.      "i^ike  a  treaty  of  political  or  commercial  union."  with 

the  United  States,  subject  to  ratification  in  legal  form. 

A  new  treaty  of  annexation  was  concluded  at  Washington.  June  !♦>, 

1897.     It  was  signed  on  the  part  of  the  United  States  l)y  Mr.  Sherman, 

Secretary  of  State,  and  by  three  commissioners  on  tlie  part  of  Hawaii. 

It  was  submitted  by  President  McKinley  to  the  Senate  on  the  same 

daj',  with  a  message  in  which  he  said: 

"Not  only  is  the  union  of  the  Hawaiian  territory  to  the  Tnited 
States  no  new  scheme,  but  it  is  the  inevitable  conse(iuence  of  the 
relation  steadfastly  maintained  with  that  mid-Pacitic  domain  for 
three-quarters  of  a  century.  Its  accomplishment,  despite  successive 
denials  and  postponements,  has  ])een  merely  a  ((uestion  of  time.  While 
its  failure  in  1898  may  not  be  a  cause  of  congratulation,  it  is  certainly 
a  proof  of  the  disinterestedness  of  the  United  States,  the  delay  of 
four  years  having  abundantly  sufiiced  to  establish  the  right  and  the 
ability  of  the  Republic  of  Hawaii  to  enter,  as  a  sovereign  contractant, 
upon  a  conventional  union  with  the  United  States,  thus  realizing  a 
purpose  held  ])y  the  Hawaiian  people  and  proclaimed  l)v  successive 
Hawaiian  governments  through  some  seventy  years  of  their  virtual 
dependence  upon  the  benevolent  protection  of  the  United  States. 
Under  such  circumstances,  annexation  is  not  a  change:  it  is  a  consum- 
mation."" 

"The  Senate  having  removed  the  injunction  of  secrecy,  although 
the  treaty  is  still  pending  before  that  ])ody,  th(>  su])ject  may  be  prop- 
erl}^  referred  to  in  this  message  because  the  necessary  action  of  the 
Congress  is  re(}uired  to  determine  by  legislation  many  details  of  the 
eventual  union,  should  the  fact  of  annexation  ))e  accomplished,  as  I 
believe  it  should  be.  .  .  .  That  treaty  was  unanimously  ratified 
without  amendment  l)y  the  Senate  and  President  of  the  Republic  of 
Hawaii  on  the  KJth  of  September  last,  and  only  awaits  the  favorable 
action  of  the  American  Senate  to  effect  the  complete  absorption  of  the 
islands  into  the  domain  of  the  United  States.  What  the  conditions  of 
such  a  union  shall  be,  the  political  relation  thereof  to  the  United  States, 
the  character  of  the  local  administration,  the  (luality  and  degree  of  the 
elective  franchise  of  the  inhabittuits,  the  extension  of  the  Federal  laws 
to  the  territory  oi-  the  enactment  of  special  laws  to  fit  the  peculiar  con- 
dition thereof,  the  regulation  if  need  be  of  the  labor  system  therein, 
are  all  matters  which  the  treaty  .has  wisely  relegated  to  the  Congress. 

"If  the  treaty  is  confirmed,  as  every  consideration  of  dignity  and 
honor  requires,  the  wisdom  of  Congress  will  see  to  it  that,  avoiding 

"S.  Ex.  K,  nr,  Cong.  1  sess.  Similar  statements  may  1h'  found  in  President 
McKinlev's  annual  messages  of  Dee.  0,  1897,  and  Dee.  5,  ISitS. 


504  SOVEREIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  108. 

abrupt  assimilation  of  elements  perhaps  hardly  yet  fitted  to  share  in 
the  highest  franchises  of  citizenship,  and  having  due  regard  to  the 
geographical  conditions,  the  most  just  provisions  for  self-rule  in  local 
matters  with  the  largest  political  liberties  as  an  integral  part  of  our 
nation  will  bo  accorded  to  the  Hawaiians.  No  less  is  due  to  a  people 
who,  after  nearly  five  years  of  demonstrated  capacity  to  fulfill  the 
obligations  of  self-governing  statehood,  come  of  their  free  will  to  merge 
their  destinies  in  our  body -politic. 

"The  questions  which  have  arisen  between  Japan  and  Hawaii  by 
reason  of  the  treatment  of  Japanese  laborers  emigrating  to  the  islands 
under  the  Hawaiian-Japanese  convention  of  188S,  are  in  a  satisfactory 
stage  of  settlement  b}'  negotiation.  This  Government  has  not  been 
invited  to  mediate,  and  on  the  othei"  hand  has  sought  no  intervention 
in  that  matter,  further  than  to  evince  its  kindliest  disposition  toward 
such  a  speedy  and  direct  adjustment  by  the  two  sovereign  states  in 
interest  as  shall  comport  with  equity  and  honor.  It  is  gratifying  to 
learn  that  the  apprehensions  at  first  displayed  on  the  part  of  Japan 
lest  the  cessation  of  Hawaii's  national  life  through  annexation  might 
impair  privileges  to  which  Japan  honorably  laid  claim,  have  given 
place  to  confidence  in  the  uprightness  of  this  Government,  and  in  the 
sincerity  of  its  purpose  to  deal  with  all  possible  ulterior  questions  in 
the  broadest  spirit  of  friendliness.'' 

Prepident  McKinley,  Aim.  Message,  Dec.  6,  1897. 

The  apprehensions  of  Japan,  referred  to  in  the  preceding  message, 
were  expressed  in  certain  communications  made  by 
Protest  of  Japan    ^j^g  Japanese  minister  at  Washington  to  the  Depart- 
ment of  State.     The  Japanese  Government  took  the 

drawal.  i   /  i 

the  ground  (1)  That  the  maintenance  of  the  status  quo 
in  Hawaii  was  essential  to  the  good  understanding  of  the  powers 
having  interests  in  the  Pacific;  and  (2)  that  the  a])sorption  of  the  islands 
b}'  the  United  Stiites  would  tend  to  endanger  certain  rights  of  Japan- 
ese subjects  in  the  group,  under  its  treaties,  constitution,  and  laws, 
and  might  result  in  postponing  the  settlement  of  claims  and  liabilities 
existing  in  fa\or  of  Japan  under  treaty  stipulations.  At  the  same 
time  the  Japanese  Government  took  occasion  to  deny  ""the  mischievous 
suggestion  or  report"  that  it  entertained  designs  against  the  territo- 
rial integrity  or  the  sovereignty  of  the  islands. 

The  Government  of  the  United  States,  while  declaring  this  assur- 
ance to  have  been  entirely  unnecessary,  since  no  doubt  could  be  enter- 
tained as  to  "  the  sincerity  and  friendliness  of  Japan  in  all  that  concerns 
her  relation  to  the  I'nited  States  and  to  the  Hawaiian  Islands,"  replied 
(1)  That,  while  the  treaties  of  Hawaii  woidd  fall  with  annexation,  this 
would  not  extinguish  any  "vested  rights"  previously  acquired  under 
them:  and  {'2)  that,  during  three-cjuarters  of  a  century,  in  which  the 


§  10^-]  HAWAIIAN    ISLANDS.  505 

government  and  commerce  of  the  islands  had  undergone  notable 
changes,  the  one  essential  feature  of  the  status  quo  had  been  the  pre- 
dominant and  paramount  influence  of  the  United  States,  ultimate  polit- 
ical union  being  often  foreshadowed  and  recognized  as  a  necessary 
contingency;  that  when,  four  years  previously,  a  simihir  project  of 
annexation  was  entertained  no  objection  was  suggested  bv  any  power 
having  interests  in  the  Pacitic;  and  that  it  could  not  be  admitted  that 
"the  projected  more  perfc.-t  union  of  Hawaii  to  the  United  States  l)y 
which  the  progressiv^e  policies  and  dependent  associations  of  some 
sevent}'  years  have  their  destined  culmination  can  injuie  any  legiti- 
mate interests  of  other  powers."  On  the  contrary,  it  was  expected 
"to  .strengthen,  develop,  and  perpetuate  all  such  connnonly  l)eneHcial 
interests,  '* " 

"  1  regret  to  note  that  your  (fovernment,  notwithstanding  tiie  candid 
statements  made  in  my  note  of  June  :^5th,  continues  to  insist  that  the 
maintenance  of  what  it  terms  the  status  quo  of  Hawaii  is  essential  to 
the  good  understanding  of  the  powers  which  have  interests  in  the 
Pacitic.  1  pointed  out  that  the  proposed  annexation  was  nothing  more 
than  the  culmination  of  an  avowed  policy,  announced  and  furthered  b}' 
successive  monarchical  and  republican  governments  of  the  Hawaiian 
Islands  and  pursued  on  the  part  of  the  United  States  through  a  long 
series  of  years.  The  fact  cited  of  'the  augmentation  that  has  taken 
place  in  the  interests  of  Japan  in  the  Pacific'  can  not  properly  be 
advanced  as  a  reason  why  the  policy  so  long  declared  and  pursued 
should  l>e  aljandoned  just  on  the  eve  of  its  realization.  This  augmen- 
tation of  Japanese  interests  has  taken  place  in  the  knowledge  of  cer- 
tain well  known  historical  facts,  among  which  the  following  may  be 
enumerated.  More  than  half  a  century  ago.  the  (fovernment  of  the 
United  States  announced  to  the  world  that  its  interest  in  the  Hawaiian 
Islands  was  predominant,  and  that  it  could  not  regard  with  indifference 
any  attempt  to  interfere  with  that  interest,  a  position  which  has  ])een 
constantly  and  continously  maintained.  This  was  soon  followed  b^' 
a  declination  on  its  part  to  unite  with  England  and  France  in  a  guar- 
antee of  the  independence  and  autonomy  of  the  islands.  Not  long 
thereafter  one  of  the  native  kings  authorized  the  negotiation  of  a  treaty 
of  annexation  to  the  United  States,  which  was  not  at  that  time  con- 
summated because  of  his  untimely  death.  After  repeated  solicitation 
on  the  part  of  Hawaiian  sovereigns,  a  treaty  of  conmiercial  i-eciprocity 
w^as  negotiated  ])y  one  of  them  with  the  United  States  more  than 
twentv  vears  ayfo,  which   not  onlv  made  the    islands  for  conmiercial 


a  Mr.  Sherman,  Sec.  of  State,  to  Mr.  Toru  Hoshi,  Jap.  iniii.,  June  :.'•'»,  1.S97,  MS. 
iSotes,  to  Jap.  Lej;.  I-  o^l-  See,  al.«o,  Mr.  Sherman,  Sec.  of  State,  t«.  Mr.  Sewall,  min. 
to  Hawaii,  May  26,  1897,  MS.  lui-t.  Hawaii,  III.  .318;  :Mr.  Sherman,  Sec.  of  State,  to 
Mr.  Dun,  min.  to  Japan,  tel.,  June  25,  1897,  MS.  Ins-t.  Japan,  IV.  420;  Mr.  Sherman, 
Sec.  of  State,  to  Mr.  Buck,  min.  to  Japan,  June  2G,  1897,  id.  427. 


506  sovereignty:  its  acquisition  and  loss.         [§108. 

purposes  practically  a  part  of  the  United  States,  but  contained  clauses 
of  territorial  rights  exclusivel}'  enjoyed  by  the  United  States  as  against 
all  other  nations.  The  purpose  and  etiect  of  this  treat}'  was  under- 
stood in  the  United  States  to  be  to  prepare  the  way  for  complete 
political  union  at  the  proper  time.  When  the  present  Government  of 
Hawaii  was  established  it  declared  its  intention  to  bring  about  annexa- 
tion to  the  United  States  at  the  earliest  practicable  moment,  and  it 
inserted  a  clause  to  that  etfect  in  its  constitution.  Under  these  condi- 
tions Japanese  immigration  to  and  commerce  with  the  islands  began 
and  have  been  augmented  to  their  present  proportions.  It  ma}'  be 
added  that  a  very  large  proportion  of  the  immigration  has  taken  place 
and  the  commerce  grown  up  since  the  present  Hawaiian  Government 
was  established.  The  Japanese  Government  permitted  and  encouraged 
the  inmiigration  of  its  subjects  and  the  growth  of  its  commerce  under 
these  conditions,  and  with  a  full  knowledge  of  the  policy  of  the  United 
States  as  to  these  matters.  It  can  have  therefore  no  well-founded 
cause  of  complaint  if  only  the  usual  and  legitimate  results  flow  from 
the  proposed  annexation.   .   .  . 

"Neither  should  your  Government  entertain  any  anxiety  as  to  the 
treatment  which  its  commerce  will  receive  at  the  hands  of  the  United 
States.  We  have  welcomed  the  establishment  of  one  line  of  Japanese 
steamers  to  our  Pacific  coast,  and  hope  that  others  may  follow.  Such 
development  is  perfectly  natural,  as  to-day  and  for  many  years  past 
the  United  States  has  afforded  a  large  and  more  profitable  market  than 
any  other  country  for  Japanese  products.  On  the  other  hand,  it  has 
been  a  source  of  regret  that  relatively  so  small  a  part  of  the  import 
trade  of  Japan  is  made  up  of  American  products.  Increased  trans- 
portation facilities  will,  it  is  hoped,  improve  this  state  of  the  trade, 
and  it  will  l)e  the  aim  of  the  United  States  to  do  all  that  is  possible, 
consistent  with  its  domestic  policy,  to  stimulate  and  enlarge  reciprocal 
conunerce.  The  annexation  of^  the  islands  will  necessarily  constitute 
a  coastwise  trade,  but  there  is  no  reason  to  expect  that  the  expanding 
commerce  of  Japan  will  be  materially  hampered  by  the  political  union 
which  must  have  ])een  foreseen  and  which  is  the  natural  result  of  more 
than  a  half  a  century  of  preparation. 

''  Thei'c  only  remains  one  other  point  of  your  note  which  seems  to 
call  for  a  reply.  You  express  the  fear  that  the  consummation  of 
annexation  might  tend  to  delay  an  adjustment  of  claims  for  indemnity 
which  Japan  is  now  pressing  upon  Hawaii.  I  agree  with  you  that  if 
-lapan  has  just  and  well-founded  claims  against  Hawaii,  the  latter 
should  not  expect  to  evade  them  by  an  alteration  in  its  political  status. 
But  I  do  not  understand  that  such  evasion  is  sought;  on  the  contrary, 
Hawaii  has  offered  to  submit  the  question  of  liability  to  arbitration, 
and  as  this  offer  has  been  pi'omptly  accepted  in  principle,  no  unreason- 
able delay  should  be  anticipated  in  the  actual  adjustment.     .     .     . 


§  108.] 


HAWAIIAN    ISLANDS.  .  507 


"I  tru.st  that  if  the  foregoing  statement  has  not  entirely  satisfied  the 
wishes  of  (Jount  Okuma,  under  whose  instruction  your  note,  to  which 
this  is  a  reply,  was  written,  it  will  at  least  convince  him  that,  in  the 
annexation  of  the  Hawaiian  islands  to  the  United  States,  the  Govern- 
ment of  the  latter  is  not  inspired  by  any  feeling-  of  hostility  to  Japan, 
or  by  any  desire  to  restrict  the  legitimate  sphere  of  its  influence  in  the 
Pacitic;  that  its  subjects  in  those  islands  will  be  accorded  all  th(>  rights 
and  protection  to  which  they  are  entitled  under  int(M-natioiial  law'^md 
which  they  have  reason  to  expect  from  the  past  fi-iendly  conduct  of 
the  United  States,  and  thatevery  proper  effort  will  l)emadet()  encourage 
and  enlarge  the  commercial  relations  of  the  two  countries,  destined  to 
nearer  and  more  intimate  intercourse  with  each  otluM-  in  the  future." 

Mr.  Sherman,  Sec.  of  State,  to  Mr.  Tom  Iloshi,  Jap.  min.,  August  14,  JS97, 
MS.  Xotes  to  Jap.  Leg.  I.  5.38.  See,  also,  Mr.  Blaine,  Sec.  of  State,  to  Mr. 
Conily,  min.  to  Hawaii,  June  1.3  and  June  24,  1S<S],  MS.  Inst.  Hawaii,  II. 
394,  497;  Mr.  Bayard,  Sec.  of  State,  to  :Mr.  Merrill,  min.  to  Hawaii,  July 
28,  1887,  MS.  Inst.  Hawaii.  III.  45. 

"Mr.  Sherman's  understanding  from  those  several  communications 
and  interviews  is  that  the  (xovernment  of  Japan,  not  finding  the  declara- 
tions contained  in  the  note  on  the  same  subject,  which  ]\Ir.  Sherman 
had  the  honor  to  address  to  Mr.  Hoshi  on  the  14th  of  August  last  in 
response  to  inquiries  of  a  like  character  theretofore  made,  as  explicit  as 
it  had  desired,  wishes  further  information  as  to  the  attitude  of  this 
Government  after  the  annexation  of  Hawaii,  should  that  be  accom- 
plished, in  regard  to  what  had  been  termed  '  the  vested  rights'  of  Japan 
in,  and  in  respect  to  Hawaii,  and  the  future  status  of  the  sul)jects  of 
Japan  in  those  islands.  In  communicating  this  wish  of  his  Govern- 
ment, Mr.  Hoshi  conveys  the  gratifying  assurance  that  the  Goveriunent 
of  Japan  has  no  disposition  to  insist  upon  its  opposition  to  annexation 
which  had  been  announced  in  previous  communications,  and  notably  in 
Mr.  Hoshi's  note  of  July  lOth  last,  perceiving  in  the  assurances  it  had 
received  from  the  Government  of  the  United  States  in  the  correspond- 
ence which  had  passed,  the  purpose  to  deal  with  the  rights  and  interests 
of  Japan  in  Hawaii  in  a  spirit  of  sincere  friendliness.  That  assurance 
is  now  most  cordially  renewed. 

••The  nature  of  the  inquiry  now  made  will  Ijest  appear  ])y  citing  the 
language  in  w^hich  it  is  set  forth  in  Mr.  Hoshi's  memorandum: 

""'  "The  Imperial  Government  therefore  desires  to  ascertaiii  wiiether 
the  United  States  Government  can  assure  them  that,  in  the  event 
annexation  becomes  an  acconqjlished  fact,  no  discrimination  of  any 
nature  which  shall  not  apply  to  the  commerce,  navigation,  subjects  or 
citizens  of  other  nations,  shall  ])e  established  or  maintained  as  against 
the  commerce,  navigation  or  subjects  of  Japan  in  Hawaii.' 

"Besides  this  general  aspect  of  the  Japanese  inciuiry,  the  memoran- 
dum of  Mr.  Hoshi  presents  the  special  phase  of  the  eventual  dispo- 
sition of  the  pending  claims  of  Japan  against  Hawaii,  growing  out  of 


508  SOVEREIGNTY' :    ITS    ACQUISITION    AND    LOSS.  [§108. 

the  tieatnuMit  of  Japanese  iiii migrants  to  the  Islands,  and  the  imposi- 
tion therein  of  a  discriminating  duty  upon  the  Japanese  wine,  known 
as  'sake.'  Here  again,  the  terms  of  the  inc^uiry  will  best  appear  by 
qiToting  the  words  of  the  memorandum  itself. 

'•'It  is  true,  that  the  United  States  Government  is  not  a  party  to 
this  controversy,  but  the  conditions  are  peculiar,  and  Mr.  Hoshi  feels 
that  he  is  justified  in  calling  attention  to  the  solicitude  which  his  Gov- 
ernment naturally  entertains.  He  has  no  intention  of  endeavoring  to 
fix  any  contingent  responsibilit}^  upon  the  United  States,  either  directly 
or  by  implication,  but  under  the  circumstances  he  thinks  that  it  is  his 
duty  to  ascertain  whether,  in  case  annexation  is  completed  before  the 
claims  are  finally  adjudicated,  the  United  States  is  prepared  to  assume 
the  responsibilities  accruing  to  Hawaii  in  this  behalf,  and  to  satisfy 
the  claims  if  they  are  found  to  be  well  established.' 

"Taking  up  the  latter  point  first  as  a  matter  of  detail  which  may 
conveniently  be  gotten  out  of  the  way  before  proceeding  to  consider 
the  main  question  put,  Mr.  Sherman  deems  it  proper  to  say,  that  the 
President  believes  that,  so  far  as  Japan  may  have  any  legitimate  claim 
for  actual  damages,  it  might  be  unfair  to  the  flapanese  Government 
were  all  responsibility  for  such  claim  to  be  annulled  by  the  annexation 
of  Hawaii  to  this  countiy,  and  that,  while  this  Government  could  not 
concede  in  advance  that  Japan  would  have  any  just  ground  for  com- 
plaint in  that  contingency,  it  would  be  disposed,  in  the  exercise  of  the 
constitutional  powers  which  the  Executive  possesses  in  respect  to 
international  negotiations,  to  take  up  the  matter  with  the  Government 
of  Japan,  in  the  event  of  annexation  being  consummated,  and  endeavor 
to  settle  for  any  peciuiiary  claims  which  Japan  might  establish  for  an 
infi-action  of  its  rights  to  import  goods  into  Hawaii,  or  as  to  its  claim 
concerning  the  rejection  of  its  subjects  b}^  the  Hawaiian  Government, 
approaching  the  matter  in  that  spirit  of  candor  and  fairness  which,  if 
any  such  claim  were  found  to  be  well  grounded,  would  doubtless  con- 
duce to  an  amicable  termination. 

"  Mr.  Hoshi  cannot  ])e  unaware  that,  under  the  constitutional  system 
ruling  in  the  United  States,  the  essential  matters  treated  of  in  the 
memorandum  would,  in  the  event  of  annexation,  ])e  the  subject  of 
action  ])y  the  Congress,  as  the  lawmaking  power,  and  that  the  JLxecu- 
tive  has  neither  the  power  nor  the  disposition  to  limit  the  legislative 
branch  of  the  Government  by  any  expression  of  his  own  opinion  or 
policy.  The  President  feels  only  friendly  sentiments  toward  Japan 
and  its  people.  Nothing  in  the  past  history  of  the  relations  between 
this  countr}'  and  Japan  shows  any  other  sentiment  on  the  part  of  the 
legislative  or  any  other  branch  of  our  Government.  On  the  contrary, 
as  is  amply  recognized  in  the  note  of  the  Imperial  Japanese  Minister 
for  Foreign  Affairs  which  accompanies  Mr.  Hoshi's  memorandum, 
Japan  has  alwtiys  confidently  counted,  and  not  in  vain,  upon  the  friend- 


»  ^^^-^  HAWAIIAN    ISLANDS.  509 

ship  and  friendly  support  of  the  United  States,  and  bonds  of  good  will 
and  mutual  esteem  have  long  and  firmly  united  Japan  and  America. 

*'This  country  has  never  shown  any  inclination  to  discriminate 
against  Japanese  subjects  in  its  legislation  heretofore,  nevertheless  the 
matter  .so  far  as  the  present  question  is  concerned  must  be  left  entirely 
to  the  legislative  action  by  the  proper  department  of  this  (jovernment 
after  annexation,  if  that  should  occur.  The  Executive  has  no  right 
to  conclude  the  Congress,  or  to  make  any  compact  that  would  assume 
to  do  so. 

"In  the  interviews  which  Mr.  Hoshi  has  had  with  Mr.  Sherman  and 
Mr.  Day,  it  has  been  pointed  out  to  him  that,  in  the  event  of  aruiexa- 
tion,  or  in  any  event,  there  would  be  but  a  shoit  inter\al  before  the 
17th  of  July,  l.Si>9,  the  date  of  the  taking  effect  of  the  new  treaty 
between  the  I'nited  States  and  Japan,  which,  as  Mr.  lloshi  concedes, 
.secures  and  deiines  the  rights  of  Japanese  subjects  in  this  country. 
If,  during  this  brief  interval,  the  Hawaiian  Islands  should  be  admitted 
to  become  a  part  of  the  domain  of  the  United  States,  much  would  have 
to  be  done  in  the  way  of  determining  the  conditions  of  their  union. 
The  pending  treaty  of  annexation,  as  Mr.  Hoshi  is  probably  aware, 
does  not  determine  the  future  political  status  of  the  islands.  Every- 
thing, even  as  to  the  character  and  form  of  their  government,  is  left 
to  be  prescribed  and  regulated  by  legislation,  the  details  of  which  yet 
remain  to  be  considered.  With  so  large  and  important  a  task  ])efore 
it,  hast}^  or  improvident  action  })y  the  Congress  is  not  to  be  appre- 
hended in  any  matter,  especialh'  if  affecting  the  well  ))eing  of  the 
newly  acquired  domain  and  the  encouragement  and  development  of  its 
industries  and  natural  resources,  in  which  the  material  interests  of  this 
country  and  of  its  citizens  are  already  so  intimately  concerned.  It  is 
not  to  1)6  apprehended  that  the  Executive  would  advise  any  such  action. 

'•In  conclusion,  Mr.  Sherman  points  to  the  intimation,  contained  in 
the  President's  annual  message  to  the  Congress  at  the  opening  of  their 
present  session,  as  to  the  uprightness  and  sincerity  of  the  purpose  of 
this  Government  to  deal  with  all  possil)le  ulterior  (juestions  affecting 
the  rights  of  Japan  in  the  Hawaiian  Islands  in  the  broadest  spirit  of 
friendliness." 

Menioranduin  of  Mr.   Sherman,   Sec.  of  State,  to  Mr.  T(jru  Ho^?hi,  .Jap.  iiiin., 
Jan.  8,  1898,  MS.  Notes  to  .Jap.  Leg.  I.  54-5. 

"Pending  the  consideration  by  the  Senate  of  the  treaty  signed  rlune 

16, 1897,  by  the  plenipotentiaries  of  the  I'nited  States 

Joint   resolution   of    .^,^^1  ^^^  ^jjp  Kepublic  of  Hawaii,  providing  for  the 

annexation,     July  , .  /•  ii      •    i        i  •    •    a  \\-        4.  .., 

annexation  OT  the  islands,  a  loint  resolution  to  accom- 

7,  1898.  ,.  ,       ,  ,  •  I         xi-        I 

push    the  same   purpose    hy   accei)tmg  the  otierecl 

cession   and   incorporating  the  ceded   toiritorv    into   the   rnion   was 

adopted  by  the  Congress  and  approved  July  7,  iSHs.     1  thereupon 


510  sovereignty:  its  acquisition  and  loss.         [§108. 

directedthe  U.  8.  S.  Pli'dadelpltia  to  convey  Rear-Adniiral  Miller  to 
Honolulu,  and  intrusted  to  his  hands  this  important  legislative  act,  to 
be  delivered  to  the  President  of  the  Republic  of  Hawaii,  with  whom 
the  Admiral  and  the  United  States  minister  were  authorized  to  make 
appropriate  arrangements  for  transferring  the  sovereignty  of  the 
islands  to  the  United  States.  This  was  simply  but 
Transfer   of   sover-     impressively  accomplished  on  the  12th  of  August 

Tq^o        ^^  ^'^•'^t.  bv  the  deliverv  of  a  certified  copv  of  the  reso- 

lution  to  President  Dole,  who  thereupon  yielded  up 
to  the  representative  of  the  Government  of  the  United  States  the  sov- 
ereignty and  public  property  of  the  Hawaiian  Islands. 

"Pursuant  to  the  terms  of  the  joint  resolution  and  in  exercise  of 
the  authority  thereby  conferred  upon  me,  I  directed  that  the  civil, 
judicial,  and  military  powers  theretofore  exercised  b}^  the  officers  of 
the  Government  of  the  Republic  of  Hawaii  should  continue  to  be 
exercised  by  those  officers  until  Congress  shall  provide  a  government 
for  the  incorporated  territory,  subject  to  my  power  to  remove  such 
officers  and  to  fill  vacancies.  The  President,  officers,  and  troops  of 
the  Republic  thereupon  took  the  oath  of  allegiance  to  the  United 
States,  thus  providing  for  the  uninterrupted  continuance  of  all  the 
administrative  and  municipal  functions  of  the  annexed  territory  until 
Congress  shall  otherwise  enact. 

''Following  the  further  provision  of  the  joint  resolution,  I  appointed 
the  Honorables  Shelby  M.  CuUom.  of  Illinois,  John  T.  Morgan,  of 
Alal)ama,  Robert  R.  Hitt.  of  Illinois.  Sanford  B.  Dole,  of  Hawaii, 
and  Walter  F.  Frear,  of  Hawaii,  as  commissioners  to  confer  and 
recommend  to  Congress  such  legislation  concerning  the  Hawaiian 
Islands  as  they  should  deem  necessary  or  proper.  The  commission- 
ers having  fulfilled  the  mission  confided  to  them,  their  report  will  be 
laid  before  you  at  an  early  day.     .     .     . 

■"Under  the  provisions  of  the  joint  resolution,  the  existing  customs 
relations  of  the  Hawaiian  Islands  with  the  United  States  and  with 
other  countries  remain  unchanged  until  legislation  shall  otherwise 
provide.  The  consuls  of  Hawaii,  here  and  in  foreign  countries,  con- 
tinue to  fill  their  connuercial  agencies,  while  the  United  States  consu- 
late at  Honolulu  is  maintained  for  all  appropriate  services  pertaining 
to  trade  and  the  revenue.  It  would  be  desirable  that  all  foreign  con- 
suls in  the  Hawaiian  Islands  should  receive  new  exequaturs  from  this 
Government. 

"The  attention  of  Congress  is  called  to  the  fact  that  our  consular 
offices  having  ceased  to  exist  in  Hawaii,  and  being  about  to  cease  in 
other  countries  coming  under  the  sovereignty  of  the  United  States, 
the  provisions  for  the  relief  and  transportation  of  destitute  American 
seamen  in  these  countries  under  our  consular  regulations  will  in  con- 
sequence terminate.      It  is  proper,  therefore,  that   new  legislation 


§  1^^-]  HAWAIIAN    ISLANDS.  511 

should  be  enacted  upon  this  subject,  in  order  to  meet  the  changed 
conditions.-' 

President  :\IcKiuley,    Ann.    Message,    Dec.  8,   1898.     See  the  report  of  the 

Hawaiian  Commission,  S.  Doc.  16,  55  Cong.  3  sess. 
The  Trea-sury  Department  issued,  Aug    4,  1898,  a  circular  relating  to  trade 

with  Hawaii. 

"Some  embarrassment  in  administration  has  occurred  by  reason  of 
the  peculiar  status  v\hich  the  Hawaiian  Islands  at  present  occupy 
under  the  joint  resolution  of  annexation  approved  July  7,  1898. 
While  by  that  resolution  the  Kepublic  of  Hawaii  as  an  independent 
nation  was  extinguished,  its  separate  sovereignty  destroyed,  and  its 
property  and  possessions  vested  in  the  United  States,  yet  a  complete 
establishment  for  its  government  under  our  system  Avas  not  effected. 
While  the  municipal  laws  of  the  islands  not  enacted  for  the  f ultillment 
of  treaties  and  not  inconsistent  with  the  joint  resolution  or  contrary  to 
the  Constitution  of  the  United  States  or  any  of  its  treaties  remain  in 
force,  yet  these  laws  relate  only  to  the  social  and  internal  affairs  of  the 
islands,  and  do  not  touch  many  sul)jects  of  importance  which  are  of  a 
broader  national  character.  For  example,  the  Hawaiian  Kepu])lic  was 
divested  of  all  title  to  the  public  lands  in  the  islands,  and  is  not  only 
unaVjle  to  dispose  of  lands  to  settlers  desiring  to  take  up  homestead 
sites,  but  is  without  power  to  give  complete  title  in  cases  where  lands 
have  been  entered  upon  under  lease  or  other  conditions  which  carry 
with  them  the  right  to  the  purchaser,  lessee,  or  settler  to  have  a  full 
title  granted  to  him  upon  compliance  with  the  conditions  prescribed  by 
law  or  l)y  his  particular  agreement  of  entry. 

'•Questions  of  doubt  and  difficulty  have  also  arisen  with  reference 
to  the  collection  of  tonnage  tax  on  vessels  coming  from  Hawaiian  ports; 
with  reference  to  the  status  of  Chinese  in  the  islands,  theii'  entrance 
and  exit  therefrom:  as  to  patents  and  copyrights;  as  to  the  register  of 
vessels  under  the  navigation  laws;  as  to  the  necessity  of  holding  elec- 
tions in  accordance  with  the  provisions  of  the  Hawaiian  statutes  for 
the  choice  of  various  officers,  and  as  to  several  other  matters  of  detail 
touching  the  interests  both  of  the  islands  and  of  the  Federal  Govern- 
ment. 

"By  the  resolution  of  annexation  the  rfesident  was  directed  to 
appoint  live  conunissioners  to  recommend  to  Congress  such  legislation 
concerning  the  islands  as  they  should  deem  necessary  oi-  pr<  )pc  r.  These 
commissioners  were  duly  appointed  and  after  a  careful  iin  estigation 
and  study  of  the  system  of  laws  and  government  pr('\  ailing  in  the 
islands,  and  of  the  conditions  existing  there,  tiiey  prei)ared  a  bill  to 
provide  a  government  under  the  title  of  ■'The  Territory  of  Hawaii." 
The  report  of  the  Counnission.  with  the  bill  which  they  prepared,  was 
transmitted  by  me  to  Congress  on  I)ecenil)ei-  ♦'..  ISIKS,  but  the  bill  still 
awaits  tinal  action. 


512  sovEREiGisrTY :  ITS   A(;quisitton  and  loss.  [§  108. 

'"■  The  people  of  these  i.slancls  are  entitled  to  the  benetits  and  privileges 
of  our  Constitution,  but  in  the  absence  of  any  act  of  Congress  provid- 
ing for  Federal  courts  in  the  islands,  and  for  a  procedure  b}^  which 
appeals,  writs  of  error,  and  other  judicial  proceedings  necessary  for 
the  enforcement  of  civil  rights  may  be  prosecuted,  thev  are  powerless 
to  secure  their  enforc(Muent  l)y  the  judgment  of  the  courts  of  the  United 
States.  It  is  manif(>stly  impoi'tant,  therefore,  that  an  act  shall  be 
passed  as  speedily  as  possi])le  erecting  these  islands  into  a  judicial 
district,  providing  for  the  appointment  of  a  judge  and  other  proper 
ofldcers  and  methods  of  procedure  in  the  appellate  proceedingfs,  and 
that  the  govenunent  of  this  newly  acquired  territory  under  the  Federal 
Constitution  shall  be  fully  detined  and  provided  for.'' 

President  ]\IcKihley,  Third  Annual  Message,  Dec.  5,  1899. 

By  an  executive  order  of  Sept.  11,  1899,  President  McKinley  directed  that  all 
proceedings  for  the  sale  or  disposition  of  public  lands  in  Hawaii  should  ))e 
discontinued;  and  that  if  any  sales  or  agreements  of  sale  thereof  had  been 
made  since  the  adoption  of  the  resolution  of  annexation,  the  purchaser 
should  be  notified  that  they  were  null  and  void,  any  consideration  paid  to 
the  local  authorities  to  l)e  refunded.  (Mr.  Hill,  Acting  Sec.  of  State,  to 
the  Sec.  of  the  Interior,  Oct.  10,  1899,  240  MS.  Dom.  Let.  450.) 

As  to  lands  in  Honolulu  for  naval  puri)oses,  see  proclamation  of  Nov.  10,  1899. 

By  another  executive  order  of  May  13,  1899,  the  general  election  i)rovided  for 
by  the  Hawaiian  constitution,  to  he  lield  on  the  last  Wednesday  in  the 
ensuing  September,  was  susi)ended,  and  elective  officers  were  continued 
in  their  places.  (Mr.  Cridler,  Third  Assist.  Sec.  of  State,  to  Mr.  Kahn, 
Feh.  23,  1900,  243  MS.  Dom.  Let.  181.) 

A  government  for  the  Territory  of  Hawaii  was  provided  by  the  act  of  Congress 
of  April  30,  1900. 

See  H.  Report  305,  56  Cong.  1  sess. 

Asto  the  extension  of  the  laws  relating  to  connnerce,  navigation,  and  merchant 
seamen  over  the  Hawaiian  Islands,  see  House  Report  1694,  53  Cong.  3  sess. 
A  decree  in  admiralty  of  the  supreme  court  of  Hawaii  in  a  case  i)ending 
in  the  Hawaiian  courts  at  the  time  of  the  annexation  is  not  subject  to  an 
appeal  to  the  United  States  circuit  court  of  appeals  for  the  ninth  circuit. 
(Ex  i^arte  Wilder's  Steamship  Co.  (1902),  183  U.  S.  545.) 

As  to  the  extension  of  customs  and  internal-revenue  laws  over  the  islands,  see 
House  Report  1683,  53  Cong.  3  sess. 

Information  as  to  the  Hawaiian  land  system  may  be  found  in  S.  Doc.  72,  56 
Cong.  1  sess. 

Provisional    meas-       '"  The  United  States  minister  at  Honolulu  ceased  to 

ures;      consular  discharge  his  diplomatic  functions  on  July  4,  1898." 

representation. 

]\Ir.  Hay,  Sec.  of  State,  to  Mr.  Buchanan,  miu.  to  Argentine  Rep.,  Nov.  17, 
1898,  For.  Rel.  1898.  The  date  in  this  (piotation  should  be  August  12, 
1898.  On  that  day  the  ceremonial  transfer  of  sovereignty  took  place,  and 
Mr.  Sewall,  Cnited  States  minister  at  Honolulu,  his  diplomatic  functions 
ceasing,  was  i)rovisionally  invested  with  the  character  of  agent  of  the 
Unite<l  States,  pending  further  legislation  by  Congress. 


§  1<^8.]  HAWAIIAN    ISLANDS.  513 

December  9,  1898,  the  embassy  of  the  United  States  at  Berlin 
reported  that  some  time  previously,  no  official  information  having  been 
received  of  the  annexation  of  the  islands,  it  had  declined  to  grant  a 
passport  to  a  citizen  of  the  Hawaiian  Islands,  although  it  was  known 
that  a  law  had  been  passed  to  make  them  a  part  of  the  United  States. 
The  applicant  subsequent!}'  obtained  a  passport  from  Mr.  Glade,  the 
Hawaiian  charge  d'affaires  and  consul-general  in  Berlin. 

The  embassy  also  reported  that  at  the  then  recent  opening  of  the 
Reichstag,  to  which  the  diplomatic  corps  received  a  formal  invitation, 
the  Hawaiian  charge  was  present,  and  that  his  name  still  appeared  in 
the  official  list  of  the  diplomatic  corps.  The  embassy  requested 
instructions. 

The  Department  of  State  replied: 

"As  stated  in  my  telegram  of  the  4th  instant,  the  diplomatic  func- 
tions of  the  Hawaiian  representative  as  charge  d'affaires  ceased  upon 
the  annexation  of  the  islands.  With  reference  to  his  commercial 
capacity,  I  enlarge  upon  my  telegrams  as  follows: 

"By  the  joint  resolution  of  Congress,  approved  July  7,  1898,  pro- 
viding for  the  annexation  of  the  Hawaiian  Islands  to  the  United  States, 
it  is  provided  that  'until  legislation  shall  be  enacted  extending  the 
United  States  customs  laws  and  regulations  to  the  Hawaiian  Islands, 
the  customs  relations  of  the  Hawaiian  Islands  with  the  United  States 
and  other  countries  shall  remain  unchanged.' 

"This  Government  had  regarded  that  provision  of  law  as  continuing 
the  commercial  relations  of  the  Hawaiian  Islands  with  other  states 
pending  such  legislation  by  Congress  concerning  the  Hawaiian  Islands 
as  may  be  deemed  necessar}^  or  proper,  and  consequently  the  United 
States  continues  to  conduct  its  commercial  business  through  its  own 
consular  officer  at  Honolulu  as  a  de  facto  commercial  agent,  while  the 
Hawaiian  consuls  in  this  country  continue  to  act  in  a  similar  capacity. 
Until  the  commercial  dependency  of  the  Hawaiian  Islands  upon  the 
United  States  shall  be  regulated  by  law,  it  would  seem  desirable  that 
the  present  representatives  of  the  Hawaiian  Islands  should  continue 
to  discharge  their  commercial  functions  as  such  agents  in  foreign  coun- 
tries, and  until  such  laws  shall  be  passed  this  Government  is  not  pre- 
pared to  commission  those  consular  officers  as  full  consular  officers  of 
the  United  States  or  to  merge  their  functions  in  those  of  existing  con- 
sular representatives  of  the  United  States  in  the  same  localities. 

"With  regard,  however,  to  the  consular  officers  of  foreign  govern- 
ments in  the  Hawaiian  Islands  the  case  is  somewhat  different,  and 
inquiries  on  this  point  have  been,  in  several  instances,  answered  by 
expressing  the  opinion  of  this  Government  that  it  would  be  desirable 
for  the  existing  foreign  consuls  in  the  Hawaiian  Islands  to  receive  new 
commissions  from  their  governments,  upon  which  this  Government 

H.  Docx  551 33 


514  soveeeignty:  its  acquisition  and  loss.         [§  108. 

could  issue  its  exequatur  covering  the  present  provisional  arrange- 
ment with  respect  to  the  commercial  intercourse  of  Hawaii  with  foreign 
countries. " 

Mr.  Hay,  Sec.  of  State,  to  Mr.  White,  ambass.  to  Germany,  Jan.  10,  1899,  For. 
Rel.  1899,  295. 

Statements  suy)stantially  the  same  may  be  found  in  Mr.  Hay,  Sec.  of  State,  to 
Baron  von  Riedenau,  Austrian  charg^,  Dec.  13,  1898,  MS.  Notes  to  Aust. 
Leg.  IX.  398. 

See,  also,  Mr.  Hay,  Sec.  of  State,  to  Mr.  Romano,  Ital.  cliarge,  Oi-t.  7,  1898, 
MS.  Notes  to  Ital.  Leg.  IX.  300;  Mr.  Hay,  Sec.  of  State,  to  Mr.  Grip,  min. 
of  Sweden  and  Norway,  Nov.  17,  1898,  and  Dec.  15,  1899,  ]\IS.  Notes  to 
Swedish  Leg.  VIII.  109,  149;  Mr.  Hay,  Sec.  of  State,  to  Sir  Julian  Paunce- 
fote,  Brit,  ami).,  Dec.  30,  1898,  For.  Rel.  1898,  585. 

Mr.  Hay,  as  Secretary  of  State,  in  a  letter  of  January  27,  1899,  informed  Mr. 
Glade  that,  upon  the  annexation  of  the  islands,  his  "diplomatic  functions 
as  the  Hawaiian  charge  d'affaires  necessarily  ceased,"  but  that,  under  the 
terms  of  the  joint  resolution  of  July  7,  1898,  his  functions  as  consul-general 
would,  till  further  legislation  was  enacted,  "provisionally  continue,  sub- 
ject to  instructions  to  be  given  you  by  the  Hawaiian  Government,  in  all 
commercial  matters,  not  inconsistent  with  the  al)ove  referred  to  resolu- 
tion, .  .  .  until  the  commercial  dependency  of  the  Hawaiian  Islands 
upon  the  United  States  shall  be  regulated  by  law."  (234  MS.  Dom.  Let. 
282.  See,  also,  Mr.  Hay,  Sec.  of  State,  to  Mr.  "White,  amb.  to  Germany, 
Jan.  27,  1899,  MS.  Inst.  Germany,  XX.  635. ) 

When  the  joint  resolution  of  July  7,  1898,  was  j^assed,  Mr.  William  Haywood 
was  instructed,  as  United  States  consul-general  at  Honolulu,  in  view  of  the 
important  connection  of  his  office  with  the  then-existing  customs  relations 
between  the  United  States  and  Hawaii,  to  remain  at  his  post  till  further 
notice.  Again,  on  July  21,  1899,  Mr.  Hay,  as  Secretary  of  State,  issued 
the  following  order: 

"In  view  of  the  anomalous  condition  of  affairs  between  the  United  States  and 
the  Hawaiian  Islands  arising  in  consequence  of  the  act  of  Congress  approved 
.fuly  7, 1898,  providing  for  the  annexation  of  those  islands,  and  the  failure 
of  Congress  to  provide  a  form  of  government  therefor,  it  is  hereby  ordered, 
until  action  by  Congress  is  taken  to  effect  a  change  in  the  existing  condi- 
tions with  those  islands,  that  William  Haywood,  appointed  secretary  of 
legation  and  consul-general  of  the  United  States  at  Honolulu,  June  1, 
1897,  be  directed  to  continue  as  consul-general  and  sign  as  such,  as  a 
measure  of  urgent  and  public  necessity;  and  that  his  salary  be  paid  as 
heretofore  from  the  appropriation  for  the  annexation  of  the  Hawaiian 
Islands."     (238  MS.  Dom.  Let.  562.) 

Mr.  Haywood's  consular  functions  ceased  at  the  close  of  June  13, 1900,  the  act 
of  April  30,  1900,  "to  provide  a  government  for  the  Territory  of  Hawaii," 
going  into  effect  on  the  following  day.  (Mr.  Cridler,  Third  Assist.  Sec.  of 
State,  to  Mr.  Haywood,  cons.  gen.  at  Honolulu,  May  23,  1900,  172  MS. 
Inst,  to  Consuls,  442.)  The  Department  of  State  held  that  his  consular 
bond  would  not  cease  to  be  in  force  "until  after  June  13,  1900,  and  then 
only  upon  the  formal  submission  of  his  accounts  and  their  auditing  by  the 
proper  officers  of  the  Treasury  Department."  (Mr.  Cridler,  Third  Assist. 
Sec.  of  State,  to  the  Fidelity  and  Casualty  Co.,  May  31,  1900,  245  MS. 
Dom.  Let.  345.) 

Mr.  W.  P.  Boyd,  who  was  appointed  vice  and  deputy  consul-general  at  Hoon- 
lulu,  June  20, 1892,  was  also  regarded  as  authorized  to  continue  to  perform 


§  108.]  HAWAIIAN   ISLANDS.  515 

his  duties  as  such  after  the  joint  resolution  of  July  7,  1898.  (Mr.  Adee, 
Second  A.ssist.  Sec.  of  State,  to  the  Title  Insurance  i^c  Tru.st  Co.,  Oct.  18, 
1899,  240  MS.  Dom.  Let.  548.) 
The  United  States  consul  at  Buenos  Ayres,  where  the  Hawaiian  Government 
was  never  represented,  was  instructed  to  act  for  Hawaiian  commercial 
intercourse  so  far  as  was  necessary  and  proper.  (Mr.  Hay,  Sec.  of  State, 
to  Mr.  Buchanan,  min.  to  Argentine  Rep.,  tel.,  Xov.  17,  1898,  For.  Rel. 
1898,  6.     See,  also,  Mr.  Hay,  Sec.  of  State,  to  Sec.  of  the  Treasury,  Xov.  16, 

1898,  232  MS.  Dom.  Let.  577.) 

""Cannot  authorize   captain  [Hawaiian]   schooner  Amer'u-nna  hoist 

United  States  flag*  in  absence  Congre.ssional  legislation. 
Hawaiian  vessels,   tt  ••     e  n  it  A^-^-\^l_^'^i• 

Hawaii   rormally  annexed  August  12,   nut  legislation 

necessary  to  cany  into  operation   internal  and  foreign  commercial 

arrangements." 

Mr.  Hay,   Sec.  of  State,  to  Mr.  Buchanan,  min.  to  Argentine  Republic,  tel., 

Nov.  21,  1898,  For.  Rel.  1898,  7. 
It  was  held  by  the  Treasury  Department  that  Hawaiian  vessels  could  not  be 

considered  as  vessels  of  the  United  States  without  additional  legislation. 

(Mr.  Spaulding,  Acting  Sec.  of  the  Treasury,  to  ^Ir.  Hay,  Sec.  of  State, 

Jan.  10,  1899;  ]\Ir.  Hay,  Sec.  of  State,  to  Mr.  Buchanan,  min.  to  Argentine 

Rep.,  Jan.  13,  1899,  For.  Rel.  1898,  9.) 

"I  enclose  ...  a  copy  of  the  P^xecutive  order  of  the  President 
dated  the  18th  instant,  directing  that  'the  issue  of  registers  to  vessels 
by  the  authorities  of  Hawaii,  entitling  such  vessels  to  all  the  rights 
and  privileges  of  Hawaiian  vessels  in  the  ports  of  nations  or  upon  the 
high  seas,  shall  hereafter  cease.' 

"For  your  further  information  I  also  enclose  copy  of  the  opinion 
of  the  Attorney-General  upon  which  the  President's  Executive  order 
was  issued.'" 

Mr.   Adee,   Acting  Sec.  of  State,  to  Mr.  Sewall,  agent  at  Honolulu,  Sept.  20 

1899,  ^IS.   Inst.  Hawaii,  III.  476,  enclosing  copy  of  an  opinion  of  the 
Attorney-General  of  Sept.  12,  1899.     (Griggs,  At.-Gen.,  22  Op.  578.) 

By  sec.  98  of  the  act  of  April  30,  1900,  "all  vessels  carrying  Hawaiian  registers 
on  the  12th  day  of  August,  1898,  and  which  were  owned  bona  fide  by  citi- 
zens of  the  United  States,  or  the  citizens  of  Hawaii,  together  with  the 
following-named  vessels  claiming  Hawaiian  register,  Star  oi  France, 
Euterpe,  Star  of  Ru.ssia,  Falls  of  Clyde,  and  Willscott,  shall  be  entitled  to 
be  registered  as  American  vessels,  with  the  benefits  and  privileges  apper- 
taining thereto." 

•"I  had  the  honor  to  receive  your  personal  note  of  the  24th  instant 
in  which  you  express  the  apprehension  of  Her  Maj- 
esty's Government  '  lest  one  of  the  results  of  the 
annexation  of  the  Hawaiian  Islands  to  the  United  States  may  be  to 
interfere  with  the  carrying  trade  between  those  islands  and  the  United 
States,  no  inconsiderable  portion  of  which  is  now  done  in  British  bot- 
toms.'    You  state  3'our  understanding  that  there  is  at  present  nothing 


516  sovebeignty:  its  acquisition  and  loss.         [§  108. 

to  preclude  foreign  vessels  from  trading  between  the  United  States 
and  the  Hawaiian  Islands  and  that  no  legislation  is  contemplated  which 
would  interfere  with  the  trade,  and  request  information  on  these 
points. 

•'As  the  question  is  one  properl}'  for  the  consideration  of  the  Treas- 
ur}'  Department,  I  referred  your  inquiries  to  the  Secretary  of  the 
Treasury-  and  am  now  in  receipt  of  a  letter  from  Acting  Secretary 
Spaulding  in  reply.     . 

''Your  understanding  that  there  is  at  present  no  regulation  to  pre- 
clude foreign  vessels  from  such  trade,  coincides  with  the  view  of  the 
Treasury  Department,  based  on  an  opinion  of  the  Attorney-General, 
set  forth  in  the  appended  circulars. 

''The  Acting  Secretary  of  the  Treasury  is,  however,  unable  to  con- 
cur in  your  further  understanding  that  no  legislation  is  contemplated 
which  would  interfere  with  this  carrying  trade,  ^^'hile  he  does  not 
undertake  to  forecast  the  form  which  legislation  by  Congress  may 
take,  the  general  policy  of  this  countr}'  to  reserve  to  American  vessels 
trade  between  American  ports  is  so  firmly  established  that  its  reaffir- 
mation l)y  Congress  in  the  legislation  providing  for  the  extension  of 
American  laws  to  the  Hawaiian  Islands  does  not  appear  to  him  to  be 
doubtful.  He  thinks  it  possible  that  this  policy  may  be  not  put  into 
effect  until  there  has  been  an  adjustment  of  American  tonnage  to  meet 
the  situation  created  by  annexation,  but  he  thinks  it  probable  that  at 
an  early  date  trade  between  the  United  States  and  the  Hawaiian 
Islands  will  be  (confined  to  American  vessels. 

"It  may  be  noted  that,  in  obedience  to  traditional  policy",  trade 
between  the  United  States  and  Porto  Rico  has  alread}'  by  regulation 
been  confined  to  American  vessels. 

■''There  would  seem  to  be  no  occasion  to  apprehend  serious  inter- 
ference with  the  carrying  trade  between  the  United  States  and  the 
Hawaiian  Islands  as  a  result  of  such  .legislation  as  Congress  may 
enact.  The  total  combined  entries  and  clearances  of  vessels  from  and 
to  Hawaiiaii  ports  and  ports  of  the  United  States  during  the  fiscal 
3' ear  ended  June  30,  1897,  were  461  vessels  of  361,173  net  tons,  of 
which  391  vessels  of  283,211  net  tons  were  American,  and  onl}'  13  ves- 
sels of  19,040  tons  were  British.  These  figures  do  not  include  steam- 
ers which  merely  touch  at  Honolulu  to  leave  or  take  on  mail  and  a 
few  cabin  passengers  and  their  ])aggage  to  and  from  Asiatic  and  Aus- 
tralian ports.  With  regard  to  these  the  American  consul-general  at 
Honolulu,  under  date  of  January  24,  1898,  reported: 

"'The  majority'  of  these  steamers  are  British,  and  as  they  carry 
very  little  freight  to  and  from  these  islands  it  is  misleading  to  include 
them  in  any  report  of  the  nationality  of  vessels  employed  bj"  the 
Hawaiians  in  their  commerce  with  the  world.'" 

Mr.  Adee,  Act.  Sec.  of  State,  to  Sir  J.  Pauncefote,  Brit,  amb.,  Sept.  30,  1898, 
For.  Rel.  1898,  383. 


§  108.]  HAWAIIAN    ISLANDS.  517 

By  the  act  of  April  30,  1900,  "to  provide  a  government  for  the 
Territory  of  Hawaii,"  the  "coasting-  trade  between  the  [Hawaiian] 
islands  aforesaid  and  any  other  portion  of  the  United  States"  is  declared 
(sec.  98)  to  be  "  regulated  in  accordance  with  the  provisions  of  law  appli- 
cable to  such  trade  between  any  two  great  coasting  districts."  By  this 
legislation  the  transportation  of  cargo  from  the  United  States  to 
Hawaii,  and  vice  versa,  is  made  subject  to  the  laws  of  the  United 
States  relating  to  the  coasting  trade,  which  practically  exclude  foreign 
vessels.  In  reply  to  representations  as  to  the  injurious  effect  of  this 
exclusion  on  Australasian-owned  shipping,  it  was  stated  that  the  sub- 
ject was  not  within  the  discretionary  control  of  the  Executive. 

Mr.  Hay,  Sec.  of  State,  to  Lord  Pauncefote,  British  amb.,  March  20,  1901,  For. 
Rel.  1901,  204.  See,  also,  Mr.  Hay,  Sec.  of  State,  to  Lord  Pauncefote, 
Nov.  23,  1899,  MS.  Notes  to  British  Leg.  XXV.  9. 

March  30,  1900,  the  Japanese  legation  at  Washington  represented 
that  the  extension  to  Japan  of  the  prohibition  decreed 
uaran  me.  ^^^  ^j^^  Hawaiian  authorities  against  nearly  all  impor- 
tations from  Eastern  countries,  with  a  view  to  the  suppression  of  the 
bubonic  plague,  was  neither  expedient  nor  just,  and  requested  that 
such  remedial  action  be  taken  ])y  the  United  States  as  the  gravity  of 
the  circumstances  might  warrant.  The  Department  of  State  replied 
that  the  act  providing  for  the  annexation  of  the  islands  having  left 
their  commercial  relations  to  continue  under  existing  conditions  till 
Congress  should  otherwise  provide,  the  measures  of  which  the  Impe- 
rial Government  complained  would  appear  to  have  been  adopted  by 
the  Hawaiian  Government  in  the  exercise  of  its  provisional  powers 
and  without  opportunity  for  the  United  States  to  prescribe  or  control 
the  action  taken.  The  United  States,  it  was  added,  consequently  was 
without  information  which  would  enable  it  to  consider  the  grounds  on 
which  the  Hawaiian  measures  rested,  or  to  pronounce  an  opinion  as 
to  the  merits  of  the  complaint;  but  the  Government  of  Hawaii  would 
be  informed  of  the  conmmnication  and  requested  to  report  the  facts 
and  circumstances  for  the  consideration  of  the  Government  of  the 
United  States. 

Mr.  Hay,  Sec.  of  State,  to  Mr.  Komura,  Jap.  Leg.,  April  4,  1900,  MS.  Notes  to 
Jap.  Leg.  II.  1. 

By  the  act  of  April  30,  1900,  providing  a  government  for  the  Territory  of 
Hawaii,  it  was  provided  that  quarantine  stations  should  be  established  as 
directed  by  the  Supervising  Surgeon-General  of  the  United  States  Marine- 
Hospital  Service,  and  that  quarantine  regulations  relating  to  the  importa- 
tion of  diseases  from  other  countries  should  be  under  the  control  of  the 
Government  of  the  United  States,  the  general  health  laws  remaining, 
however,  in  the  jurisdiction  of  the  Territorial  government,  subject  to  the 
quarantine  laws  and  regulations  of  the  United  States. 


518  sovereignty:  its  acquisition  and  loss.         [§  108. 

After  the  passage  of  the  joint  resolution  of  annexation  of  July  7, 
1898,  and  pending  the  adoption  of  further  legislation 
by  ('ongress.  it  was  held  that  the  immigration  laws  of 
the  United  States  did  not  extend  to  the  Hawaiian  Islands,  and  that,  till 
an  act  should  be  adopted  for  the  purpose,  the  Treasury  Department 
would  have  no  authority  to  interfere  with  the  arrival  of  immigrants 
there.  It  was  added  that  when  such  legislation  should  be  adopted 
it  would  not  be  within  the  power  of  the  Treasury  to  except  particular 
cases  from  its  operation  "merely  upon  considei"ations  of  humanit}', 
however  great  the  hardship  of  the  consequences  arising  from  a  strict 
application  of  the  law  nm^  appear." 

Mr.  Hay,  Sec.  of  State,  to  Count  Vinci,  Italian  charge,  Jan.  21,  1899,  MS. 
Notes  to  Ital.  Leg.  IX.  322,  quoting  from  a  letter  of  the  Acting  Secretary 
of  the  Treasury. 

Mr.  Day,  Assist.  Sec.  of  State,  to  Mr.  Sasse,  April  21,  1898,  stated,  in  reply 
to  an  inquiry,  that  there  was  no  treaty  between  the  United  States  and 
Japan  whereby  the  United  States  was  to  control  the  immigration  of 
Japanese  into  Hawaii  after  1899.     (227  MS.  Dom.  Let.  -499.) 

By  section  8  of  the  joint  resolution  it  was  provided  that  ''there 
shall  be  no  further  iuunigration  of  Chinese  into  the 
Hawaiian  Islands  except  upon  such  conditions  as  are 
now  or  may  hereafter  l>e  allowed  by  the  United  States."'  It  was  held 
by  the  Attorney-General  of  the  United  States  (1)  that  this  clause 
applied  ''  only  to  actual  additional  immigration,  namely,  the  coming  of 
Chinese  into  the  i.slands  for  the  first  time  after  annexation,  and  not  to 
the  return  thither  of  Chinese  Avho  have  lawful  residence  there  and  are 
simply  exercising  the  recognized  right  of  returning  to  their  business 
and  their  homes  after  a  temporary  absence/'  and  (2)  ''  that  Chinese 
women  and  children  presenting  permits  issued  under  the  hiws  of 
Hawaii  prior  to  the  receipt  by  the  Hawaiian  Government  of  the 
Treasury  regulations  transmitted  to  it  through  the  special  agent  of 
the  United  States  on  November  12  last,  may  be  admitted  to  those 
islands  by  virtue  of  such  permits,  and  that  other  Chinese  permits  of 
the  Hawaiian  Government,  issued  in  the  same  manner  prior  to  the 
receipt  \)X  that  Government  of  the  regulations  just  mentioned,  enti- 
tling them  to  sojourn  for  a  temporary  period  in  the  islands,  should 
also  l)e  admitted  thereto."" 

Mr.  Hay,  Sec.  of  State,  to  Mr.  Wu,  Chinese  min.,  March  11,  1899,  For.  Rel. 
1899,  207.  See  also  Mr.  AVu  to  Mr.  Hay,  Dec.  12,  1898;  Mr.  Hay  to 
:\rr.  AVu,  Jan.  13,  1899;  Mr.  AVu  to  Mr.  Hay,  Feb.  18,  1899;  Mr.  Hay  to 
Mr.  AVu,  Feb.  24  and  March  1,  1899— For.  Rel.  1899,  202-206. 

See  opinion  of  :Mr.  Richards   Solicitor-General,  Feb.  21,  1899,  22  Op.  353. 

"Sec.  101.  That  Chinese  in  the  Hawaiian  Islands  when  this  act  takes  effect 
may  within  one  year  tliereafter  ol)tain  certificates  of  residence  as  required 
by  'An  act  to  prohibit  the  coming  of  Chinese  persons  into  the  United 
States,'  approved  May  5,  1892,  as  amended  by  an  act  approved  November 
3,  1893,  entitled  'An  act  to  amend  an  act  entitled  "An  act  to  prohibit 


§  108.]  HAWAIIAN    ISLANDS.  519 

the  coming  of  Chinese  persons  into  the  United  States,"  approved  May  5, 
1892,'  and  until  the  expiration  of  said  year  shall  not  be  deemed  to  be 
unlawfully  in  the  United  States  if  found  therein  without  such  certificates: 
Provided,  however,  That  no  Chinese  Ijiborer,  whether  he  shall  hold  such 
certificate  or  not,  shall  be  allowed  to  enter  any  State,  Territory,  or  Dis- 
trict of  the  United  States  from  the  Hawaiian  Islands."  (Act  of  April  30, 
1900,  entitled  "An  act  to  provide  a  government  for  the  Territory  of 
Hawaii."     This  act  went  into  effect  June  14,  1900.) 

"Referring-  to  instruction  No.  86,  of  October  2  last,  enclosing  an 
opinion  of  the  Attorney-General,  rendered  September 
20  last,  to  the  effect  that  claims  existing  against  Hawaii 
in  favor  of  the  subjects  or  citizens  of  foreign  governments  prior  to 
and  at  the  time  of  its  annexation  to  the  United  States  should  be 
referred  to  the  Hawaiian  Government  for  consideration,  determination, 
and  payment,  I  enclose  herewith  for  delivery  by  you  to  the  Hawaiian 
Government  the  additional  papers  listed  below  relating  to  the  British 
claims,  and  a  copy  of  a  note  from  the  Portuguese  minister  at  this 
capital  in  relation  to  the  claim  of  Manuel  Gil  dos  Reis. 

"In  view  of  the  opinion  of  the  Attorney-General,  this  Department 
has  not,  of  course,  considered  or  passed  upon  the  validity  of  any  of 
the  claims  against  Hawaii  presented  by  foreign  governments  in  behalf 
of  their  subjects. 

"The  Danish  minister  here  has  this  day  been  informed  that  the 
claim  of  Edmund  Norrie  will  also  be  considered  and  determined  by 
the  Hawaiian  Government." 

Mr.  Hay,  Sec.  of  State,  to  Mr.  Sewall,  agent  at  Honolulu,  January  4, 1900,  MS. 
Inst.  Hawaii,  III.  488. 

See  Mr.  Hay,  Sec.  of  State,  to  Lord  Pauncefote,  Brit,  amb.,  Jan.  4,  1900,  MS. 
Notes  to  Brit.  Leg.  XXV.  45;  Mr.  Hill,  Act.  Sec.  of  State,  to  the  governor 
of  Hawaii,  Jan.  9,  1901,  250  MS.  Dom.  Let.  139,  enclosing  translation  of  a 
note  of  Jan.  2,  1901,  from  the  Danish  minister  at  Washington,  relating  to 
the  claim  of  Edmund  Norrie. 

The  United  States  decided  that  the  claims  of  its  citizens,  growing  out  of  their 
arrest  in  Hawaii  in  connection  with  the  revolt  of  January,  1895,  were 
invalid,  there  being  no  evidence  that  there  was  any  maltreatment  of  the 
claimants  during  their  imprisonment,  nor  that  their  arrest  was  due  to  any 
cause  other  than  the  desire  of  the  Government  to  make  a  thorough  investi- 
gation, which  resulted  in  showing  that,  although  they  were  not  in  fact 
implicated,  they  were  not  imprisoned  "without  some  ground  of  suspicion." 
The  United  States  had  therefore  decided  that  their  alleged  illegal  treat- 
ment "was  justified  by  the  circumstances,  which  were  unusual."  (Mr. 
Hill,  Act.  Sec.  of  State,  to  Viscount  de  Santo-Thyrso,  Feb.  15,  1901,  MS. 
Notes  to  Portuguese  Leg.  VII.  280.) 

"Much  interesting  information  is  given  in  the  report  of  the  gov- 
ernor of  Hawaii  as  to  the  progress  and  development  of 
the  islands  during  the  period  from  July  7,  1898,  the 
date  of  the  approval  of  the  joint  resolution  of  the  Con- 
gress providing  for  their  annexation,  up  to  April  30,  1900,  the  date 


520  soveeeignty:  its  acquisition  and  loss.         [§109. 

of  the  approval  of  the  act  providing  a  government  for  the  Territory, 
and  thereafter. 

•'The  la.st  Hawaiian  census,  taken  in  the  3'ear  1896,  gives  a  total 
population  of  109.020,  of  which  31.019  were  native  Hawaiians.  The 
number  of  Americans  reported  was  8,185.  The  results  of  the  Federal 
census,  taken  this  year,  show  the  islands  to  have  a  total  population  of 
154,0(>1.  showing  an  increase  over  that  reported  in  1896  of  11,981,  or 
11.2  per  cent. 

'"There  has  been  marked  progress  in  the  educational,  agricultui'al, 
and  railroad  development  of  the  islands.*' 

President  McKinley,  annual  message,  Dec.  3,  1900. 
SeeH.  Report  305,  56  Cong.  1  sess. 

10.  Spanish  Wrst  Indies  (except  Ciba),  Philippines,  and  Guam. 

§  109. 

"Mr.  Pkesident:  Since  three  months  the  American  people  and  the 

Message  of  Queen  Spanish  nation  are  at  war.  because  Spain  did  not  con- 

Eegent,  July  22.  sent  to  grant  independence  to  Cuba  and  to  withdraw 

1898.  her  troops  therefrom. 

"Spain  faced  with  resignation  such  uneven  strife  and  only  endeav- 
ored to  defend  her  possessions  with  no  other  hope  than  to  oppose,  in 
the  measure  of  her  strength,  the  undertaking  of  the  United  States 
and  to  protect  her  honor. 

"Neither  the  trials  which  adversity  has  made  us  endure  nor  the 
realization  that  but  faint  hope  is  left  us  could  deter  us  from  strug- 
gling till  the  exhaustion  of  our  very  last  resources.  This  stout  pur- 
pose, however,  does  not  blind  us.  and  we  are  fully  aware  of  the 
responsibilities  which  would  weigh  upon  both  nations  in  the  eyes  of 
the  civilized  world  were  this  war  to  be  continued. 

"This  war  not  only  inflicts  upon  the  two  peoples  who  wage  it  the 
hardships  inseparable  from  all  armed  conflict,  but  also  dooms  to 
useless  suflering  and  unjust  sacrifices  the  inhal)itants  of  a  territoiy  to 
which  Spain  is  bound  by  secular  ties  that  can  be  forgotten  b}-  no 
nation  either  of  the  old  or  of  the  new  world. 

"To  end  calamities  already  so  great,  and  to  avert  evils  still  greater, 
our  coimtries  might  mutually  endeavor  to  find  upon  which  conditions 
the  present  struggle  could  ])e  terminated  otherwise  than  by  force  of 
arms. 

"Spain  believes  this  understanding  possible  and  hopes  that  this 
view  is  also  harbored  by  the  Government  of  the  United  States.  All 
true  friends  of  both  nations  share  no  doubt  the  same  hope. 

"Spain  wishes  to  show  again  that  in  this  war.  as  well  as  in  the  one 
she  carried  on  against  the  Cuban  insurgents,  she  had  but  one  object — 
the  vindication  of  her  prestige,  her  honor,  her  name.     During  the 


§  109.]  SPANISH    ISLANDS.  521 

war  of  insurrection  it  was  her  desire  to  spare  the  ^reat  island  from 
the  dangers  of  premature  independence.  In  the  present  war  she  has 
been  actuated  by  sentiments  inspired  rather  ])y  ties  of  blood  than  by 
her  interests,  and  b}"  the  right  belonging  to  her  as  mother  country. 

""Spain  is  prepared  to  spare  Cuba  from  the  continuation  of  the  hor- 
rors of  war  if  the  United  States  are  on  their  part  likewise  disposed. 

"The  President  of  the  United  States  and  the  American  people  may 
now  learn  from  this  message  the  true  thought,  desire,  and  intention 
of  the  Spanish  nation. 

"And  so  do  we  wish  to  learn  from  the  President  of  the  United 
States  upon  which  basis  might  be  established  a  political  stjitus  in 
Cuba,  and  might  be  terminated  a  strife  which  would  continue  without 
reason  should  both  Governments  agree  upon  the  means  of  pacifj^ing 
the  island. 

"In  the  name  of  the  Government  of  Her  Majesty  the  Queen  Regent 
I  have  the  honor  to  address  this  message  to  your  Excellency  with  the 
expression  of  my  highest  consideration." 

Message  of  the  Government  of  Her  ^lajesty  the  Queen  Regent  of  Ppani,  to 
the  President  of  the  United  States,  dated  at  ^Madrid,  July  22,  1898;  signed 
by  the  Duke  of  Alniodovar  del  Rio,  ^linisterof  State;  submitted  by  Mr.  .7. 
Cambon,  French  ambassador  at  "Washington,  to  President  ^IcKinley. 
(For.  Rel.  1898,  819.) 

"  Excellency:  The  President  received  on  the  afternoon  of  Tuesday', 

the  26th  instant,  from  the  hand  of  his  excellencv  the 
President's      reply,         ,  i  ,.  -.^  i.'         e        J_^  • 

ambassador  or  li  ranee,  representing  tor  this  purpose 

the  Government  of  Spain,  the  message  signed  ))y  your 

excellency  as  minister  of  state  in  ))ehalf  of  the  Gov^ernment  of  Her 

Majesty  the  Queen  Regent  of  Spain,  and  dated  the  22d  instant,  as  to 

the  possibility  of  terminating  the  war  now  existing  ]>etween  the  I'nited 

States  and  Spain. 

"The  President  received  with  satisfaction  the  suggestion  that  the 
two  countries  might  mutualh'  endeavor  to  ascertain  the  conditions  on 
which  the  pending  struggle  may  l)e  brought  to  an  end,  as  well  as  the 
expression  of  Spain's  belief  that  an  understanding  on  the  subject  is 
possible. 

"During  the  protracted  negotiations  that  preceded  the  outbreak  of 
hostilities,  the  President  earnestly  lal)ored  to  avert  a  conflict,  in  the 
hope  that  Spain,  in  consideration  of  her  own  interests  as  well  as  those 
of  the  Spanish  Antilles  and  the  United  States,  would  tind  a  wny  for 
removing  the  conditions  which  had  for  half  a  century  constantly  dis- 
turbed the  peace  of  the  Western  Hemisphere  and  on  numerous  occa- 
sions brought  the  two  nations  to  the  verge  of  war. 

"The  President  witnessed  with  profound  disappointment  the  frus- 
tration of  his  peaceful  efforts  by  events  which  forced  upon  the  people 
of  the  United  States  the  unalterable  conviction  that  nothintr  .short  of 


522  sovereignty:  its  acquisition  and  loss.  [§109. 

relinquishment  by  Spain  of  a  claim  of  sovereignty  over  Cuba  which 
she  was  unable  to  enforce,  would  relieve  a  situation  that  had  become 
unendurable. 

**For  years  the  Government  of  the  laiited  States,  out  of  regard  for 
the  susceptibilities  of  Spain,  had  by  the  exercise  of  its  power  and  the 
expenditui'e  of  its  treasure  preserved  the  obligations  of  neutrality. 
But  a  point  was  at  length  reached  at  which,  as  Spain  had  often  been 
forewarned,  this  attitude  could  no  longer  be  maintained.  The  spec- 
tacle at  our  very  doors  of  a  fertile  territory  wasted  b}'  tire  and  sword 
and  given  over  to  desolation  and  famine,  was  one  to  which  our  people 
could  not  be  indifferent.  Yielding  therefore  to  the  demands  of  human- 
ity, they  determined  to  remove  the  causes,  in  the  effects  of  which  they 
had  become  so  deeph'  involved. 

'"To  this  end  the  President,  with  the  authority  of  Congress,  presented 
to  Spain  a  demand  for  the  withdrawal  of  her  land  and  naval  forces  from 
Cuba,  in  order  that  the  people  of  the  island  might  ])e  enabled  to  form 
a  government  of  their  own.  To  this  demand  Spain  replied  b}^  sever- 
ing diplomatic  relations  with  the  United  States,  and  by  declaring  that 
she  considered  the  action  of  this  Government  as  creating  a  state  of 
war  between  the  two  countries. 

"The  President  could  not  but  feel  sincere  regret  that  the  local  ques- 
tion as  to  the  peace  and  good  government  of  Cuba  should  thus  have 
been  transformed  and  enlarged  into  a  general  conflict  of  arms  between 
two  great  peoples.  Nevertheless,  having  accepted  the  issue  with  all 
the  liazards  which  it  involves,  he  has,  in  the  exercise  of  his  duty,  and 
of  the  rights  which  the  state  of  war  confers,  prosecuted  hostilities  b}' 
land  and  sea,  in  order  to  secure  at  the  earliest  possible  moment  an 
honoraljle  peace.  In  so  doing  he  has  been  compelled  to  avail  himself 
unsparingly  of  the  lives  and  fortunes  which  his  countrymen  have 
placed  at  his  command,  and  untold  burdens  and  sacrifices,  far  tran- 
scending any  material  estimation,  have  been  imposed  upon  them. 

"That,  as  the  result  of  the  patriotic  exertions  of  tiie  people  of  the 
United  States,  the  strife  has,  as  your  excellency  observes,  proved 
unequal,  inclines  the  President  to  offer  a  brave  adversary  generous 
terms  of  peace. 

"The  President,  therefore,  responding  to  your  excell(Micy's  request, 
will  state  the  terms  of  peace  which  will  be  accepted  b}"  him  at  the 
present  time,  subject  to  the  approval  of  the  Senate  of  the  United  States 
hereafter. 

"Your  excellency  in  discussing  the  question  of  Cuba,  intimates  that 
Spain  has  desired  to  spare  the  island  the  dangers  of  premature  inde- 
pendence. The  Government  of  the  United  States  has  not  shared  the 
apprehensions  of  Spain  in  this  regard,  but  it  recognizes  the  fact  that 
in  the  distracted  and  prostrate  condition  of  the  island,  aid  and  guid- 
ance will  be  necessary,  and  these  it  is  prepared  to  give. 


§  109.]  SPANISH    ISLANDS.  523 

"The  United  States  will  require: 

"First.  The  relinquishment  by  Spain  of  all  claim  of  sovereignty^ 
over  or  title  to  Cuba,  and  her  immediate  evacuation  of  the  island. 

"Second.  The  President,  desirous  of  exhibiting  signal  generosity 
will  not  now  put  forth  an}'  demand  for  pecuniary  indemnity.  Never- 
theless, he  can  not  be  insensible  to  the  losses  and  expenses  of  the 
United  States  incident  to  the  war,  or  to  the  claims  of  our  citizens  for 
injuries  to  their  persons  and  property  during  the  late  insurrection  in 
Cuba.  He  must  therefore  require  the  cession  to  the  United  States, 
and  the  evacuation  by  Spain  of  the  islands  of  Porto  Rico  and  other 
islands  now  under  the  sovereignty  of  Spain  in  the  West  Indies,  and 
also  the  cession  of  an  island  in  the  Ladrones  to  be  selected  by  the 
United  States. 

"Third.  On  similar  grounds  the  United  States  is  entitled  to  occupj-, 
and  will  hold  the  city,  ba} ,  and  harbor  of  Manila  pending  the  conclu- 
sion of  a  treaty  of  peace  which  shall  determine  the  control,  disposition, 
and  government  of  the  Philippines. 

"If  the  terms  hereby  offered  are  accepted  in  their  entirety,  commis- 
sioners will  be  named  by  the  United  States  to  meet  similarly  author- 
ized commissioners  on  the  part  of  Spain  for  the  purpose  of  settling 
the  details  of  the  treaty  of  peace,  and  signing  and  delivering  it  under 
the  terms  above  indicated." 

Mr.  Day,  Sec.  of  State,  to  the  Duke  of  Almodovar  del  Rio,  Spanish  Minister 
of  State,  July  30,  1898,  For.  Rel.  1898,  820. 

"Mr.  Secretary  of  State:  The  French  ambassador  at  Washington, 

whose  good  offices  have  enabled  the  Spanish  (TO\'ern- 

«       -r  Tono      ment  to  address  a  message  to  the  President  of  the 
Aug,  7,  1898.         ^    .  ,  ^ 

United  States,  has  forwarded  by  cable  your  excellency''s 
reply  to  this  document. 

"  In  examining  the  arguments  used  as  a  preamble  to  the  specitication 
of  the  terms  upon  which  peace  may  be  restored  between  Spain  and  the 
United  States,  it  behooves  the  Spanish  Government  to  deduct  from 
the  order  of  events  that  the  severance  of  diplomatic  relations  with  the 
United  States  had  no  other  purpose  than  to  decline  the  acceptance  of 
an  ultimatum  which  Spain  could  only  consider  as  an  attempt  against 
her  rightful  sovereignty  over  Cuba. 

"  Spain  did  not  declare  war;  she  met  it  because  it  was  the  only  means 
of  defending  her  rights  in  the  Greater  Antilles.  Thus  did  the  Queen 
and  the  United  States  see  fft  to  transform  and  enlarge  the  purely  local 
question  of  Cuba. 

"  From  this  fact  3'our  excellency  draws  the  conclusion  that  the  ques- 
tion at  stake  is  no  longer  only  the  one  which  relates  to  the  territory  of 
Cuba,  but  also  that  the  losses  of  American  lives  and  fortunes  incident 
to  the  war  should  in  some  manner  be  compensated. 


524  sovereignty:  its  acquisition  and  loss.         [§  109. 

"As  to  the  tirst  condition,  relating- to  the  futureof  Cuba,  the  two  Gov- 
ernments reach  .similar  conclusions  in  regard  to  the  natural  inability  of 
its  people  to  establish  an  independent  government.  Be  it  by  reason  of 
inadequate  development,  as  we  believe,  or  on  account  of  the  present 
distracted  and  prostrate  condition  of  the  island,  as  your  excellency 
states,  the  fact  remains  that  Cuba  needs  guidance.  The  American 
people  are  willing  to  assume  the  responsibility  of  giving  this  guidance 
by  substituting  themselves  to  the  Spanish  nation,  whose  right  to  keep 
the  island  is  indisputable;  to  this  intimation  we  have  nothing  to  oppose. 
The  necessity  of  withdrawing  from  the  territory  of  Cuba  being  impera- 
tive, the  nation  assuming  Spain's  place  must,  as  long  as  this  territory 
shall  not  have  fully  reached  the  conditions  required  to  take  rank  among 
other  sovereign  powers,  provide  for  rules  which  will  insure  order  and 
protect  against  all  risks  the  Spanish  residents,  as  well  as  the  Cuban 
natives  still  loyal  to  the  mother  country. 

""In  the  name  of  the  nation  the  Spanish  Government  hereby  relin- 
quishes all  claim  of  sovereignty  over  or  title  to  Cuba,  and  engages  to 
the  irremeable  evacuation  of  the  island,  sul>ject  to  the  approval  of  the 
Cortes — a  reserve  which  we  likewise  make  with  regard  to  the  other 
proffered  terms — just  as  these  tei'ms  will  have  to  })e  ultimately  approved 
by  the  Senate  of  the  United  States. 

"The  United  States  require,  as  an  indemnity  for  or  an  equivalent  to 
the  sacrifices  they  have  ])orne  during  this  short  war,  the  cession  of 
Porto  Rico  and  of  the  other  islands  now  under  the  sovereignty  of 
Spain  in  the  West  Indies,  and  also  the  cession  of  an  island  in  the 
Lad  rones,  to  l)e  selected  l)v  the  Federal  Government. 

"This  demand  strips  us  of  the  very  last  memory  of  a  glorious  past, 
and  expels  us  at  once  from  the  prosperous  island  of  Porto  Rico  and 
from  the  Western  Hemisphere,  which  became  peopled  and  civilized 
through  the  proud  deeds  of  our  ancestors.  It  might,  perhaps,  have 
been  possible  to  compensate  ])y  some  other  cession  for  the  injuries 
sustained  l)v  the  Ignited  States.  However,  the  inflexil)iljty  of  the 
demand  obliges  us  to  cede,  and  we  shall  cede,  the  island  of  Porto  Rico 
and  the  other  islands  belonging  to  the  Crown  of  Spain  in  the  West 
Indies,  together  with  one  of  the  islands  of  the  archipelago  of  the 
Ladrones,  to  be  selected  by  the  American  Government. 

"  The  terms  i-elating  to  the  Philippines  seem,  to  our  understanding,  to 
be  (juite  indetinite.  On  the  one  hand,  the  ground  on  which  the  United 
States  believe  themselves  entitled  to  occupy  the  l)ay,  the  harbor,  and 
the  city  of  Manila,  pending  the  conclusion  of  a  treaty  of  peace,  can  not 
be  that  of  concpiest,  since  in  spite  of  the  ))lockade  maintained  on  sea  by 
the  American  fleet,  in  spite  of  the  siege  established  on  land  by  a  native 
supported  and  provided  for  by.  the  American  admiral,  Manila  still 
holds  its  own,  and  the  Spanish  standai'd  still  waves  over  the  city.  On 
the  other  hand,  the  whole  archipelago  of  the  Philippines  is  in  the  power 


§  109.]  SPANISH    ISLANDS.  525 

and  under  the  sovereignt}'  of  Spain.  Therefore  the  Government  of 
Spain  thinks  that  the  temporary  occupation  of  Manila  should  consti- 
tute a  guaranty.  It  is  stated  that  the  treaty  of  peace  shall  determine 
the  control,  disposition,  and  government  of  the  Philippines;  but  as  the 
intentions  of  the  Federal  Government  by  regression  remain  veiled, 
therefore  the  Spanish  Government  must  declare  that,  while  accepting 
the  third  condition,  they  do  not  a  priori  renounce  the  sovereignty  of 
Spain  over  the  archipelago,  leaving  it  to  the  negotiators  to  agree  as  to 
such  reforms  which  the  condition  of  these  possessions  and  the  level  of 
culture  of  their  natives  may  render  desirable. 

"The  Government  of  Her  Majesty  accepts  the  third  condition,  with 
the  above-mentioned  declarations. 

"  Such  are  the  statements  and  oVjservations  which  the  Spanish  Gov- 
ernment has  the  honor  to  submit  in  reply  to  your  excellency's  com- 
munication. They  accept  the  proffered  terms,  subject  to  the  approval 
of  the  Cortes  of  the  Kingdom,  as  required  by  their  constitutional 
duties. 

"The  agreement  between  the  two  Governments  implies  the  irre- 
meable suspension  of  hostilities  and  the  designation  of  commissioners 
for  the  purpose  of  settling  the  details  of  the  treaty  of  peace  and  of 
signing  it,  under  the  terms  above  indicated.*' 

Message  of  the  Duke  of  Ahnodovar  del  Rio,  Spanish  ^Minister  of  State,  to  ^Ir. 
Day,  Sec.  of  State,  dated  Madrid,  Aug.  7,  1898,  and  presented  to  !Mr.  Day 
hy  Mr.  Cambon,  French  ambassador,  Aug.  9,  1898.     (For.  Rel.  1898,  822.) 

"Although  it  is  your  understanding  that  the  note  of  the  Uuke  of 

Ahnodovar.  which  vou  left  with  the  President  on  ves- 
Protocol  of  August   ,       i  ...  •  *  •    j        i     i    . 

12  1898         terday  atternoon,  is  intended  to  convey  an  acceptance 

by  the  Spani.sh  Government  of  the  terms  set  forth  in 
nw  note  of  the  3Uth  ultimo  as  the  l)asis  on  which  the  President  would 
appoint  commissioners  to  negotiate  and  conclude  Avith  commissioners 
on  the  part  of  Spain  a  treaty  of  peace,  1  understand  that  we  concur  in 
the  opinion  that  the  Duke's  note,  doubtless  owing  to  the  various  trans- 
formations which  it  has  undergone  in  the  cour.se  of  its  circuitous  trans- 
mission by  telegraph  and  in  cipher,  is  not,  in  the  form  in  Avhich  it  has 
reached  the  hands  of  the  President,  entirely  explicit. 

"Under  these  circumstances  it  is  thought  that  the  most  direct  and 
certain  way  of  avoiding  misunderstanding  is  to  embody  in  a  protocol, 
to  be  signed  T)y  us  as  the  representatives,  respectively,  of  the  United 
States  and  Spain,  the  terms  on  which  the  negotiations  for  peace  are  to 
be  undertaken. 

"I  therefore  inclose  herewith  a  draft  of  such  a  protocol,  in  which 
you  will  lind  that  I  have  embodied  the  precise  terms  tendered  to  Spain 
in  ni}'  note  of  the  ;^()th  ultimo,  together  with  appropriate  stipulations 
for  the  appointment  of  commissioners  to  arrange  the  details  of  the 
immediate  evacuation  of  Cuba,  Porto  Rico,  and  other  islands  under 


526 


sovereignty:  its  acquisition  and  loss. 


[§  109. 


Spanish  .sovereignt}'  in  the  West  Indies,  a.s  well  as  for  the  appoint- 
ment of  commissioners  to  treat  of  peace." 

Mr.  Day,  Sec.  of  State,  to  Mr.  Cambon,  French  ambassador,  Aug.  10,  1898, 
For.  Rel.  1898,  823. 

\ug.  ]2,  1898,  Mr.  Day,  Secretary  of  State,  and  ]\Ir.  Cambon,  French  ambas- 
sador, signed,  as  the  result  of  the  foregoing  correspondence,  the  following 
protocol,  in  English  and  in  French: 


William  K.  Day,  Secretary  of  State 
of  the  Ignited  States,  and  His  Excel- 
lency Jules  Camlx)n,  Ambassador  Ex- 
traordinary and  Plenipotentiary  of 
the  Republic  of  France  at  Wa.shing- 
ton,  respectively  possessing  for  this 
purpose  full  authority  from  the  Gov- 
ernment of  the  United  States  and  the 
Government  of  Spain,  have  concluded 
and  signed  the  following  articles,  em- 
bodying the  terms  on  which  the  two 
Governments  have  agreed  in  respect 
to  the  matters  hereinafter  set  forth, 
having  in  view  the  establishment  of 
peace  between  the  two  countries,  that 
is  to  say: 

Article  1.  Spain  will  relinquish  all 
claim  of  sovereignty  over  and  title  to 
Cuba. 

Article  II.  Spain  will  cede  to  the 
United  States  the  island  of  Porto  Rico 
and  other  islands  now  under  Spanish 
sovereignty  in  the  West  Indies,  and 
also  an  island  in  the  T>adrones  to  be 
selected  by  the  United  States. 

Article  III.  The  United  States  will 
occupy  and  hold  the  city,  bay  and 
harl)orof  Manila,  pending  the  conclu- 
sion of  a  treaty  of  peace  which  shall 
determine  the  control,  disposition  and 
government  of  the  Philippines. 

Article  IV.  Spain  will  immedi- 
ately evacuate  Cuba,  Porto  Rico  and 
other  islands  now  under  Spanish  sov- 
ereignty in  the  West  Iridies;  and  to 
this  end  each  Government  will,  within 
ten  days  after  the  signing  of  this  pro- 
tocol, appoint  Commissioners,  and  the 
Commissioners  so  appointed  shall, 
within  thirty  days  after  the  signing  f)f 
this  protoc(jl,  meet  at  Havana  for  the 
purpose  of  arranging  and  carrying  out 
the  details  of  the  aforesaid  evacuation 
of  Cuba  and   the    adjacent    Spanish 


William  R.  Day,  Secretaire  d'Etat 
des  Etats-Unis,  et  Son  Excellence  M. 
Jules  Cambon,  Ambassadeur  Extraor- 
dinaire etPlenipotentiairede  la  Repub- 
lique  Franc^aise  a  W^ashington,  ayant 
respectivement  re^'u  a  cet  effet  pleine 
autorisation  du  Gouvernement  des 
Etats-Unis  et  du  Gouvernement 
d'Espagne,  out  conclu  et  signe  les  arti- 
cles suivants  qui  precisent  les  termes 
sur  lesquels  les  deux  Gouvernements 
se  sont  mis  d'accord  en  ce  qui  con- 
cerne  les  questions  ci-apres  designees 
et  ayant  pour  objet  I'etablissement  de 
la  paix  entre  les  deux  pays,  savior: 

Article  I.  L'Espagne  renoncera  a 
toute  pretention  ;\  sa  souverainete  et  a 
tout  droit  sur  CuV)a. 

Article  II.  L'Espagne  cedera  aux 
Etats-Unis  I'ile  de  Porto-Rico  et  les 
autres  lies  aetuellement  sous  la  souv- 
erainete Espagnole  dans  les  Indes 
Occidentales,  ainsi  qu'une  ile  dans  les 
Ladrones  qui  sera  choisie  par  les  Etats- 
Unis. 

Article  III.  Les  p]tats-Unis  occu- 
peront  et  tiendront  la  ville,  la  bale  et 
le  port  de  Manille  en  attendant  la  con- 
clusion d'un  traite  de  paix  qui  devra 
determiner  le  controle,  la  disposition 
et  le  gouvernement  des  Philippines. 

Article  IV.  L'Espagne  evacuera 
immediatement  Cuba,  Porto  Rico  et 
les  autres  iles  aetuellement  sous  la 
souverainete  Espagnole  dans  les  Indes 
Occidentales;  a  cet  effet  chacun  des 
deux  Gouvernements  nommera,  dans 
les  dix  jours  qui  suivront  la  signature 
de  ce  protocole,  des  commissaires,  et 
les  commissaires  ainsi  nomm^s  de- 
vront,  tlans  les  trente  jours  qui  sui- 
vront la  signature  de  ce  protocole,  se 
rencontrer  a  la  Havane  afin  d'arranger 
et  d'executer  les  details  de  I'evacuation 


109.] 


SPANISH    ISLANDS. 


527 


islands;  and  each.  Government  will, 
within  ten  days  after  the  signing  of 
this  protocol,  also  appoint  other  Com- 
missioners, who  shall,  within  thirty 
days  after  the  signing  of  this  protocol, 
meet  at  San  Juan,  in  Porto  Rico,  for 
the  purpose  of  arranging  and  carrying 
out  the  details  of  the  aforesaid  evacua- 
tion of  Porto  Rico  and  other  islands 
now  under  Spanish  sovereignty  in  the 
West  Indies. 


Article  V.  The  United  States  and 
Spain  will  each  appoint  not  more  than 
five  commissioners  to  treat  of  jjeace, 
and  the  commissioners  so  appointed 
shall  meet  at  Paris  not  later  than  Octo- 
ber 1,  1898,  and  i)roceed  to  the  nego- 
tiation and  conclusion  of  a  treaty  of 
peace,  which  treaty  shall  l)e  subject 
to  ratification  according  to  the  respec- 
tive constitutional  forms  of  the  two 
countries. 

Article  VI.  Upon  the  conclusion 
and  signing  of  this  protocol,  hostili- 
ties between  the  two  countries  shall 
be  suspended,  and  notice  to  that  effect 
shall  be  given  as  soon  as  possible  by 
each  Government  to  the  commanders 
of  its  military  and  naval  forces. 

Done  at  Washington  in  duplicate, 
in  {English  and  in  French,  by  the  Un- 
dersigned, who  have  hereunto  set 
their  hands  and  seals,  the  12th  day  of 
August  1898. 


sus-mentionnee  de  Cuba  et  des  ilea  Es- 
pagnoles  adjacentes;  et  chacun  des 
deux  Gouvernements  nommera  egale- 
ment,  dans  les  dix  jours  qui  suivront 
la  signature  de  ce  protocole,  d'autres 
commissaires  qui  devront,  dans  les 
trente  jours  de  la  signature  de  ce  pro- 
tocole, se  reucontrer  a  San  Juan  de 
Porto-Rico  afin  d'arranger  et  d'execu- 
ter  les  details  de  Fevacuation  sus-men- 
tionnee de  Porto- Rico  et  des  autres  iles 
actuellement  sous  la  souverainete  Es- 
pagnole  dans  les  Indes  Occidentales. 

Article  V.  Les  Etats-Unis  et  rp>s- 
pagne  nommeront,  jiour  traiter  de  la 
paix,  cinq  commissaires  au  plus  pour 
chaque  pays;  les  commissaires  ainsi 
nommes  devront  se  rencontrer  a  Paris, 
le  l'^''  Octobre  1898,  au  plus  tard,  et 
proceder  a  la  negociation  et  a  la  con- 
clusion d'un  traite  de  paix;  ce  traite 
sera  sujet  a  ratification,  selon  les 
formes  constitutionnelles  de  chacun 
des  deux  pays. 

Article  VI.  A  la  conclusion  et  a  la 
signature  de  ce  protocole,  les  hostili- 
tes  entre  les  deux  pays  devront  etre 
suspendues,  et  des  ordres  a  cet  effet 
devront  etre  donnes  aussitot  que  pos- 
sible par  chacun  des  deux  Gouverne- 
ments aux  commandants  de  ses  forces 
de  terre  et  de  mer. 

Fait  a  Washington,  en  double  ex- 
emplaire,  anglais  et  frangais,  par  les 
Soussignes  qui  y  ont  appose  leur  sig- 
nature et  leur  sceau,  le  12  Aout  1898. 


"This  Government  has  selected  the  island  of  Guam  [in  the  Ladrones], 

_    ^     ^.  ,    and  you  are  instructed  to  embody  in  the  treaty  of 

Instructions    of  -^  .  .  ,   -^ 

Sept.  16, 1898.     peace  a  proper  stipulation  of  cession. 

"Without  any  original  thought  of  complete  or  even 
partial  acquisition,  the  presence  and  success  of  our  arms  at  Manila 
imposes  upon  us  obligations  which  we  can  not  disregard.  The  march 
of  events  rules  and  overrules  human  action.  Avowing  unreservedly 
the  purpose  which  has  animated  all  our  effort,  and  still  solicitous  to 
adhere  to  it,  we  can  not  be  unmindful  that  without  any  desire  or  design 
on  our  part  the  war  has  brought  us  new  duties  and  responsibilities 
which  weuuistmeet  and  discharge  as  becomes  a  great  nation  on  whose 
growth  and  career  from  the  beginning  the  Ruler  of  Nations  has  plainly 
written  the  high  command  and  pledge  of  civilization. 

"Incidental  to  our  tenure  of  the  Philippines  is  the  commercial 
opportunity  to  which  American  statesmanship  can  not  be  indifferent. 


528  sovereignty:  its  acquisition  and  loss.         [§109. 

It  is  just  to  use  every  legitimate  means  for  the  enlargement  of  Amer- 
ican trade;  but  we  seek  no  advantages  in  the  Orient  which  are  not 
t;ommon  to  all.  Asking  only  the  open  door  for  ourselves,  we  are 
read}'  to  accord  the  open  door  to  others.  The  conmiercial  opportu- 
nity which  is  naturally  and  inevita])ly  associated  with  this  new  open- 
ing depends  less  on  large  territorial  possessions  than  upon  an  adequate 
commercial  basis  and  upon  broad  and  equal  privileges. 

"It  is  believed  that  in  the  practical  application  of  these  guiding 
principles  the  present  interests  of  our  countr}"  and  the  proper  meas- 
ure of  its  duty,  its  welfare  in  the  future,  and  the  consideration  of  its 
exemption  from  unknown  perils  will  be  found  in  full  accord  with  the 
just,  moral,  and  humane  purpose  which  was  invoked  as  our  justilica- 
tion  in  accepting  the  war. 

''In  view  of  what  has  been  stated,  the  United  States  can  not  accept 
less  than  the  cession  iti  full  right  and  sovereignty  of  the  island  of 
Luzon.  It  is  desirable,  however,  that  the  United  States  shall  acquire 
the  right  of  entry  for  vessels  and  merchandise  belonging  to  citizens  of 
the  United  States  into  such  ports  of  the  Philippines  as  are  not  ceded 
to  the  United  States  upon  terms  of  equal  favor  with  Spanish  ships  and 
merchandise,  both  in  relation  to  port  and  customs  charges  and  rates  of 
trade  and  commerce,  together  with  other  rights  of  protection  and  trade 
accorded  to  citizens  of  one  country  within  the  territor}^  of  another. 
You  are  therefore  instructed  to  demand  such  concession,  agreeing  on 
your  part  that  Spain  shall  have  similar  rights  as  to  her  subjects  and 
vessels  in  the  ports  of  any  territory  in  the  Philippines  ceded  to  the 
United  States. 

Instructions  of  President  McKinley  to  the  United  States  Peace  Commissioners, 

Sept.  16,  1898,  S.  Doc.  148,  56  Cong.  2  sess.  5,  7. 
For  reports  of  the  Peace  Commissioners  in  relation  to  the  Philippines,  see 

S.  Doc.  148,  56  Cong.  2  sess.  18,  24,  32,  42,  43,  44,  45,  51,  54,  58. 

"The  information  which  has   come   to  the  President  since  your 

departure  convinces  him  that  the  acceptance  of  the 
Decision  as  to  the  •  ..    t  i  i         •  j^i  j^       c    ^i 

„  ...    .  cession    oi   Luzon   alone,   leavmg   the   rest  ot   the 

Philippines.  .  .  ,         . 

islands  subject  to  Spanish  rule,  or  to  be  the  subject 

of  future  contention,  can  not  be  justified  on  political,  commercial,  or 
humanitarian  grounds.  The  cession  must  be  of  the  whole  archipelago 
or  none.  The  latter  is  wholly  inadmissible  and  the  former  must  there- 
fore be  required.  The  President  reaches  this  conclusion  after  most 
thorough  consideration  of  the  whole  subject,  and  is  deeply  sensible  of 
the  grave  responsibilities  it  will  impose,  believing  that  this  course  will 
entail  less  trou])le  than  any  other  and  besides  will  best  subserve  the 
interests  of  the  people  involved,  for  whose  welfare  we  can  not  escape 
responsibilit^^ 

Mr.  Hay,  Sec.  of  State,  to  Mr.  Day,  president  of  the  United  States  Peace 
Commission,  tel.,  Oct.  26,  1898,  S.  Doc.  148,  56  Cong.  2  sess.  35. 

The  views  expressed  in  the  foregoing  telegram  are  amplified  in  INIr.  Hay,  Sec. 
of  State,  to  Mr.  Day,  president  of  United  States  Peace  Commission,  tel. 
Oct.  28,  1898,  S.  Doc.  148,  56  Cong.  2  sess.  37. 


§  109.]  SPANISH    ISLANDS.  '  529 

"  A  treaty  of  peace  is  of  the  highest  importance  to  the  United  States 
if  it  can  be  had  without  the  sacrifice  of  plain  duty.  The  President 
would  reg-ret  deeply  the  resumption  of  hostilities  against  a  prostrate 
foe.  We  are  clearly  entitled  to  indemnity  for  the  cost  of  the  war. 
We  can  not  hope  to  be  fully  indemnified.  We  do  not  expect  to  be. 
It  would  probably  be  difiicult  for  Spain  to  pay  money.  All  she  has 
are  the  archipelagoes  of  the  Philippines  and  the  Carolines.  She  sureh^ 
can  not  expect  us  to  turn  the  Philippines  back  and  bear  the  cost  of  the 
war  and  all  claims  of  our  citizens  for  damages  to  life  and  property  in 
Cuba  without  any  indemnity  but  Porto  Rico,  which  we  have  and 
which  is  wholh'  inadequate.  Does  Spain  propose  to  pay  in  money  the 
cost  of  the  war  and  the  claims  of  our  citizens,  and  make  full  guar- 
anties to  the  people  of  the  Philippines,  and  grant  to  us  concessions  of 
naval  and  telegraph  stations  in  the  islands,  and  privileges  to  our  com- 
merce the  same  as  enjoyed  by  herself  rather  than  surrender  the  archi- 
pelago i  From  the  standpoint  of  indemnity  both  the  archipelagoes  are 
insuflicient  to  pa}'  our  war  expenses,  but  aside  from  this  do  we  not 
owe  an  obligation  to  the  people  of  the  Philippines  which  will  not  per- 
mit us  to  return  them  to  the  sovereignt}'  of  Spain  ?  Could  we  justify 
ourselves  in  such  a  course,  or  could  we  permit  their  barter  to  some 
other  powers  Willing  or  not.  we  have  the  responsibilit}-  of  duty 
which  we  can  not  escape. 

"You  are  therefore  instructed  to  insist  upon  the  cession  of  the 
whole  of  Philippines,  and,  if  necessary,  pay  to  Spain  ten  to  twenty 
millions  of  dollars,  and  if  a'ou  can  get  cession  of  a  naval  and  tele- 
graph station  in  the  Carolines,  and  the  several  concessions  and  privil- 
eges and  guaranties,  so  far  as  applicable,  enumerated  in  the  views  of 
Commissioners  Frye  and  Reid,  you  can  offer  more.  The  President 
can  not  believe  any  division  of  the  archipelago  can  ])ring  us  anything 
but  embarrassment  in  the  future.  The  trade  and  commercial  side,  as 
well  as  the  indemnity  of  the  cost  of  the  war,  are  questions  we  might 
3' ield.  They  might  be  waived  or  compromised,  but  the  questions  of 
dutv  and  humanity  appeal  to  the  President  so  strongly  that  he  can 
find  no  appropriate  answer  but  the  one  he  has  here  marked  out.  You 
have  the  largest  liberty  to  lead  up  to  these  instructions,  but  unrea- 
sonable delay  should  be  avoided." 

Mr.  Hay,  Sec.  of  State,  to  ]Mr.  Day,  president  of  the  I'liited  States  Peace 
Commission,  tel.,  Nov.  13,  1898,  S.  Doc.  148,  56  Cong.  '2  sess.  48.  See  also 
id.,  p.  60. 

Nov.  21,  1898,  the  American  commissioners  presented  an  ultimatum, 
in  which  the\^  demanded  the  cession  of  the  entire  archipelago  of  the 
Philippines,  while  on  the  other  hand  they  offered  to  pav  Spain 
$20,000,000,  to  admit  Spanish  ships  and  merchandise  into  the  ports  of 
the  islands  for  a  stated  period  on  the  same  terms  as  American  ships 

H.  Doc.  551 34 


530         "    sovereignty:  its  acquisition  and  loss.         [§  109. 

and  merchandise,  and  to  insert  in  the  treaty  of  peace  a  mutual  relin- 
c^uishment  of  claims. 

S.  Doc.  62,  55  Cong.  3  sess.,  part  2,  p.  210. 

By  the  treaty  of  peace  signed  Dec.  lU,  1898,  Spain  relinquished 
(Art.  I.)  *■  all  claims  of  sovereignty'  over  and  title  to  Cuba,"  and  ceded 
to  the  United  States  (Art.  II.)  '*  the  island  of  Porto  Rico"  and  other 
islands  now  under  Spanish  sovereignty  in  the  West  Indies,  and  the 
island  of  Guam  in  the  Marianas  or  Ladrones.''  She  also  ceded  (Art. 
III.)  '•  the  archipelago  known  as  the  Philippine  Islands,  and  compre- 
hending the  islands  lying  within  the  following  line:  A  line  running 
from  west  to  east  along  or  near  the  twentieth  parallel  of  north  latitude, 
and  through  the  middle  of  the  navigable  channel  of  Bachi,  from  the 
one  hundred  and  eighteenth  (118th)  to  the  one  hundred  and  twenty- 
seventh  (12Tth)  degree  meridian  of  longitude  east  of  Greenwich, 
thence  along  the  one  hundred  and  twenty-seventh  (127th)  degree 
meridian  of  longitude  east  of  Greenwich  to  the  parallel  of  four  degrees 
and  forty-live  minutes  (1-^  15')  north  latitude,  thence  along  the  parallel 
of  four  degrees  and  forty-tive  minutes  (l^-  15')  north  latitude  to  its 
insersection  with  the  meridian  of  longitude  one  hundred  and  nineteen 
degrees  and  thirty-live  minutes  (119-  35')  east  of  Greenwich,  thence 
along  the  meridian  of  longitude  one  hundred  and  nineteen  degrees  and 
thirty-iive  minutes  (119-  35')  east  of  Greenwich  to  the  parallel  of  lati- 
tude seven  degrees  and  forty  minutes  (T^  1<>')  north,  thence  along  the 
parallel  of  latitude  seven  degrees  and  forty  minutes  (7-  ItV)  north  to 
its  intersection  with  the  one  hundred  and  sixteenth  (116th)  degree 
meridian  of  longitude  east  of  Greenwich,  thence  by  a  direct  line  to  the 
intersection  of  the  tenth  (10th)  degree  parallel  of  north  latitude  with 
the  one  hundred  and  eighteenth  (118th)  degree  meridian  of  longitude 
east  of  Greenwich,  and  thence  along  the  one  hundred  and  eighteenth 
(118th)  degree  meridian  of  longitude  east  of  Greenwich  to  the  point 
of  beginning."'' 

"The  evacuation  of  Porto  Rico  was  accomplished  Oct.  18,  1898.  (President  McKin- 
ley,  third  annual  message,  Dec.  5,  1899. ) 

Acts  for  the  civil  government  of  the  island  were  approved  April  12  and  May  1, 
1900.  The  act  of  April  12,  1900,  provided  for  the  establishment  of  quarantine 
stations.  For  hearings  on  legislation  for  the  island,  see  S.  Doc.  147,  56  Cong.  1  sess. 
By  the  act  of  April  12,  1900,  the  coa-sting-trade  laws  were  made  applicable  to  trade 
and  navigation  between  the  United  States  and  Porto  Rico. 

f*  "  By  the  terms  of  theTreaty  of  Peace  the  line  bounding  the  ceded  Philippine 
group  in  the  southwest  failed  to  include  several  small  islands  lying  westward  of  the 
Sulus,  which  have  always  been  recognized  as  under  Spanish  control.  The  occupa- 
tion of  Sibutu  and  Cagayan  Sulu  by  our  naval  forces  elicited  a  claim  on  the  part  of 
Spain,  the  essential  equity  of  which  could  not  be  gainsaid.  In  order  to  cure  the 
defect  of  the  treaty  by  removing  all  possible  ground  of  future  misunderstanding 
respecting  the  interpretation  of  its  third  article,  I  directed  the  negotiation  of  a  sup- 
plementary treaty,  which  will   be  forthwith  laid  before  the  Senate,  whereby  Spain 


§109.]  SPANISH    INLANDS.  531 

By  the  same  Article  (HI.)  the  United  States  agreed  to  pa}"  to  Spain, 
within  three  months  after  the  exchange  of  the  ratifications  of  the  treaty, 
the  sum  of  $20,000,000. 

"On  the  10th  of  December,  1898,  the  treaty  of  peace  between  the 
United  States  and  Spain  was  signed.  It  provided,  among  other  things, 
that  Spain  should  cede  to  the  United  States  the  archipelago  known  as 
the  Philippine  Islands,  that  the  United  States  should  pay  to  Spain  the 
sum  of  twenty  millions  of  dollars,  and  that  the  civil  rights  and  political 
status  of  the  native  inhabitants  of  the  territories  thus  ceded  to  the 
United  States  should  bo  determined  by  the  Congress.  The  treaty  was 
ratified  l)y  the  Senate  on  the  6th  of  February,  1899,  and  by  the  Govern- 
ment of  Spain  on  the  19th  of  March  following.  The  ratifications  were 
exchanged  on  the  11th  of  April  and  the  treaty  pu))licly  proclaimed. 
On  the  2d  of  Mai'ch  the  Congress  voted  the  sum  contemplated  by  the 
treaty,  and  the  amount  was  paid  over  to  the  Spanish  Government  on 
the  1st  of  May. 

"In  this  manner  the  Philippines  came  to  the  United  States.  The 
islands  were  ceded  I)}'  the  Government  of  Spain,  which  had  })een  in 
undisputed  possession  of  them  for  centuries.  They  were  accepted 
not  merely  by  our  authorized  conmiissioners  in  Paris,  under  the  direc- 
tion of  the  Executive,  but  by  the  constitutional  and  well-considered 
action  of  the  representatives  of  the  people  of  the  United  States  in  both 
Houses  of  Congress.  I  had  every  reason  to  believe,  and  I  still  believe, 
that  this  transfer  of  sovereignty  was  in  accordance  with  the  wishes  and 
the  aspirations  of  the  great  mass  of  the  Filipino  people.   .   .   . 

"The  authorities  of  the  Sulu  Islands  have  accepted  the  succession 
of  the  United  States  to  the  rights  of  Spain,  and  our  flag  floats  over 
that  territory.  On  the  loth  of  August,  1899,  Brig.  Gen.  J.  C.  Bates, 
United  States  Volunteers,  negotiated  an  agreement  with  the  Sultan 
and  his  principal  chiefs,  which  I  transmit  herewith.  By  Article  I.  the 
sovereignty  of  the  United  States  over  the  whole  archipelago  of  Jolo 
and  its  dependencies  is  declared  and  acknowledged. 

"The  United  States  flag  will  be  used  in  the  archipelago  and  its 
dependencies,  on  land  and  sea.  Piracj'  is  to  be  suppressed,  and  the 
Sultan  agrees  to  cooperate  heartily  with  the  United  States  authorities 
to  that  end  and  to  make  ever}^  possible  effort  to  arrest  and  bring  to 
justice  all  persons  engaged  in  piracy.     All  trade  in  domestic  products 

quitf^  all  title  and  (;laiiii  of  title  to  the  islands  named  as  well  as  to  any  and  all  islands 
belonging  to  the  Philippine  Ar(;hipeIago  lying  ontside  the  lines  described  in  said 
third  article,  and  agrees  that  all  snch  islands  shall  be  comprehended  in  the  cession 
of  the  archipelago  as  fully  as  if  they  had  been  expressly  included  within  those  lines. 
In  consideratioi  of  this  cession  the  United  States  is  to  pay  to  Spain  the  sum  of 
§100,000."     (President  McKinley,  Ann.  Msg.,  Dec.  3,  1900.) 

The  supplementary  treaty  was  signed  Nov.  7,  1900;  the  ratifications  were 
exchanged  March  23,  1901. 


532  sovereignty:  its  acquisition  and  loss.         [§109. 

of  the  archipelago  of  Jolo  when  carried  on  with  any  part  of  the  Philip- 
pine Islands  and  under  the  American  ilaj^  shall  be  free,  unlimited,  and 
undutiable.  The  United  States  will  give  full  protection  to  the  Sultan 
in  case  any  foreign  nation  should  attempt  to  impose  upon  him.  The 
United  States  will  not  sell  the  island  of  Jolo  or  an}^  other  island  of 
the  Jolo  archipelago  to  any  foreign  nation  without  the  consent  of  the 
Sultan.  Salaries  for  the  Sultan  and  his  associates  in  the  administra- 
tion of  the  islands  have  been  agreed  upon  to  the  amount  of  $760 
monthly. 

""Article  X.  provides  that  an}'  slave  in  the  archipelago  of  Jolo  shall 
have  the  right  to  purchase  freedom  by  paying  to  the  master  the  usual 
market  value.  The  agreement  by  General  Bates  was  made  subject  to 
confirmation  by  the  President  and  to  future  modifications  by  the  con- 
sent of  the  parties  in  interest.  I  have  confirmed  said  agreement,  sub- 
ject to  the  action  of  the  Congress,  and  with  the  reservation,  which  I 
have  directed  shall  be  communicated  to  the  Sultan  of  Jolo,  that  this 
agreement  is  not  to  be  deemed  in  an}-  way  to  authorize  or  give  the 
consent  of  the  United  States  to  the  existence  of  slavery  in  the  Sulu 
archipelago.  I  communicate  these  facts  to  the  Congress  for  its 
information  and  action.'' 

President  McKinley,  third  annual  message,  Dee.  5,  1899. 

An  act  "temporarily  to  provide  for  the  administration  of  the  affairs  of  civil 
government  in  the  Philippine  Islands,  and  for  other  iiurposes,"  was 
approved  by  the  President  July  1,  1902. 

See,  also,  the  act  of  March  8,  1902,  "temporarily  to  provide  revenue"  for  the 
islands. 

For  communications  between  the  Executive  Departments  of  the  Government 
and  Aguinaldo,  see  S.  Doc.  208,  56  Cpng.  1  sess.,  parts  1,  2,  and  3. 

For  information  and  statistics  concerning  the  Philippines,  see  S.  Doc.  171, 
56  Cong.  1  sess. 

As  to  the  status  of  Chinese  persons  in  the  islands,  see  S.  Doc.  397,  56  Cong. 
1  sess. 

By  a  treaty  concluded  Feb.  12,  1899,  and  ratified  by  the  Cortes  and  Reichstag 
in  the  following  June,  Germany  acquired  from  Spain,  for  25,000,000  pese- 
tas, or  $4,825,000,  the  Caroline  Islands,  and  all  that  remained  of  the  ]Mari- 
anas  or  Ladrones.  (Ann.  Reg.  1899,  [334],  31;  the  International  Year 
Book,  1899,  166;  Polit.  Science  Quarterly,  XIV,  754.) 

In  a  note  of  fluly  81, 19U0,  the  German  embassy  at  AVashington  took 
the  ground,  in  connection  with  restrictions  of  trade  imposed  by  the 
militarv  authorities  of  the  islands  of  the  Sulu  Archipelago,  that  under 
the  protocols  of  1877  and  1885  between  Germany,  Great  Britain  and 
Spain  the  sovereignty  of  Spain  over  the  archipelago  was  subjected  to 
a  certain  limitation  which  had  not  been  removed  by  the  transfer  of  the 
sovereignty  by  Spain  to  the  United  States.  The  United  States,  how- 
ever, asserts  over  the  archipelago  a  sovereignty  that  is  complete  and 
exclusive. 

Mr.  Magoon,  law  officer,  division  of  insular  affairs,  War  Department,  Oct.  8, 
1900,  Magoon' a  Reps.  316. 


§  109.]  SPANISH    ISLANDS.  533 

July  T,  1899,  the  Belgian  legation  at  Washington  asked  that  the 
American  military  authorities  in  the  Philippines  be  instructed  to  permit 
a  Belgian  firm  having  an  establishment  at  Manila  to  charter  one  or 
more  neutral  vessels  "to  carrj^  on  the  coasting  trade  on  the  coasts  of 
the  islands  during  the  continuance  of  hostilities.''  The  United  States 
replied  that  it  was  not  deemed  advisable  by  the  War  Department  to 
grant  permission  at  that  time  "to  foreign  vessels  to  engage  in  the 
coasting  trade  in  the  Philippine  Islands.'''' 

By  the  act  of  March  8,  1902,  it  was  enacted  that  till  July  1,  1904, 
"the  provisions  of  law  restricting  to  vessels  of  the  United  States  the 
transportation  of  passengers  and  merchandise  directly  or  indirectly 
from  one  port  of  the  United  States  to  another  port  of  the  United  States 
shall  not  be  applicable  to  foreign  vessels  engaging  in  trade  between 
the  Philippine  Archipelago  and  the  United  States,  or  between  ports  in 
the  Philippine  Archipelago." 

October  23,  1902,  President  Roosevelt  issued  an  order  declaring  that 
the  Executive  order  of  July  3,  1899,  prescribing  the  conditions  on 
which  customs  officers  in  the  Philippines  might  issue  certificates 
entitling  vessels  to  the  protection  and  flag  of  the  United  States  on  the 
high  seas  and  in  all  ports  should  not  be  deemed  to  preclude  the  Philip- 
pine Commission  from  enacting  laws  "extending  the  right  or  privilege 
of  interisland  or  coastwise  trade  in  the  Philippine  Archipelago  to  for- 
eign vessels  during  the  period  while  the  laws  regulating  the  coastwise 
trade  of  the  United  States  are  inapplicable  thereto  under  the  provisions 
of  the  act  of  Congress  .   .   .  approved  March  8,  1902." 

"Having  referred  to  this  subject,  he  [the  Sultan  of  Turke}^]  said 
immediately  following  my  audience  with  him  ...  he  telegraphed  to 
Mecca,  it  being  the  time  of  the  annual  pilgrimage,  his  wishes  that  the 
Moslems  in  the  Philippines  should  not  war  with  the  Americans,  nor 
side  with  the  insurgents,  but  should  be  friendlv  with  our  army,  and 
that,  as  I  assured  him  (the  Sultan),  the  Americans  would  not  interfere 
with  their  religion  and  would  be  as  tolerant  toward  them  as  he  was 
toward  the  Christians  in  his  Empire.  He  added  there  was  at  Mecca 
at  the  time  he  sent  that  message  quite  a  num])er  of  pilgrims  from  the 
Pacific  Islands,  and  especially  their  most  prominent  general  and  several 
other  officers,  and  shortly  thereafter  the}'  returned  to  their  homes. 
That  he  was  glad  that  there  had  been  no  conflict  between  our  arnn^ 
and  the  Moslems,  and  that  he  certainly  hoped  their  religion  would  in 
no  manner  be  interfered  with. 

"I  replied,  of  this  he  could  certainly  feel  satisfied,  that  religious 
liberty  was  the  chief  corner  stone  of  our  political  institutions.  He 
added  he  hoped  his  friendly  spirit  toward  my  country  would  be  under- 
stood." 

Mr.  Straus,  min.  to  Turkey,  to  Mr.  Hay,  Sec.  of  State,  Sept.  2.3,  1899,  For.  Rel. 
1899,  768,  770. 

«Mr.  Hay,  Sec.  of  State,  to  Count  de  Lichtervekle,  Belgian  min.,  July  31,  1898, 
For.  Eel.  1899,  102. 


534  SOVEEEIGNTY ;    ITS    ACQUISITION    AND    LOSS.  [§  109. 

Article  I.  of  the  treaty  of  peace  with  Spain  contained  the  following 
.«  V     provision:    "And  as  the   island  [Cuba]    is,   upon   its 

Occupation  of  Cuba.  ^  .  i         r^       .  •     i    i         i        tt    • 

evacuation  by  bpain,  to  be  occupied  by  the  United 
States,  the  United  States  will,  so  long  as  such  occupation  shall  last, 
assume  and  discharge  the  obligations  that  may  under  international 
law  result  from  the  fact  of  its  occupation,  for  the  protection  of  life 
and  property." 

Referring  to  the  occupation  of  Cuba  by  the  United  States,  the  Brit- 
ish ambassador,  in  February,  1899,  expressed  the  hope  that  he  might 
receive  an  assurance  that  the  rights  of  certain  cable  companies  under 
concessions  granted  b}'  Spain  would  be  "duly  assumed  and  carried  out 
by  the  United  States  Government"  during  its  occupation  of  the 
territoiy." 

The  Department  of  State  replied  that  the  Attorney-General  held 
that  the  existing  American  control  of  Cuba  was  "essentially  and 
merely  that  exercisable  by  a  temporary  military  occupation,"  and  that 
the  United  States,  "not  having  established  a  protectorate  over  Cuba," 
was  "  not  called  upon  to  discuss  the  question  of  the  transitory  obliga- 
tions which  devolve  upon  a  protecting  state. "^ 

The  British  Government,  referring,  in  answer  to  this  statement,  to 
the  provision  in  the  treaty  (Art,  XVI.),  by  which  the  United  States 
agreed,  on  the  termination  of  its  occupancy  of  Cuba,  to  "advise  any 
government  established  in  the  island  to  assume  the  same  obligations" 
as  had  been  assumed  by  itself,  said:  "  Such  an  occupation  is  not  in  the 
slightest  degree  analogous  to  a  mere  military  occupation.  It  may  or 
may  not  l)e  temporaiy,  but,  so  long  as  it  lasts,  it  carries  with  it  the 
duty  of  respecting  such  local  obligations  as  the  concessions  of  the  tele- 
graph company.  It  need  not,  in  the  opinion  of  Her  Majest3''s  Gov- 
ernment, be  contended  that  the  United  States  assumed  absolute 
responsibility  for  the  permanent  o))servance  of  these  concessions  in 
Cu))a,  l)ut  they  arc  ]>ound  to  respect  them  during  the  occupation,  and 
to  'advise'  any  succeeding  Gov^ernment  to  do  the  like.  This  obliga- 
tion appears  to  Her  Majesty's  Government  to  result  from  the  charac- 
ter of  the  occupation  itself,  and  from  the  terms  of  the  treaty."'' 

The  Attorney-General,  commenting  upon  this  note,  called  attention 
to  the  fact  that  the  opinion  from  which  it  dissented  was  given  l)efore 
the  ratitication  of  the  treat}"  of  peace,  and  that  he  had  expressly 
referred  to  the  Tnited  States  being  "still  theoretically  at  war  with 
Spain." 

«Sir  J.  Pauiicefote,  Brit,  amb.,  to  Mr.  Tlay,  Sec.  of  State,  Feb.  H,  1899,  LSO  MS. 
Notes  from  Brit.  Leg. 

''Mr.  Hay,  Sec.  of  State,  to  Sir  .T.  I'anncefote,  Brit,  ainb.,  Mar.  27,  1899,  MS.  Notes 
to  Brit.  Leg.  XXIV.  482. 

'Sir  J.  Panncefote,  Brit,  aiiib.,  to  Mr.  Hay,  Sec.  of  State,  May  25,  1899,  1.31  MS. 
Notes  from  Brit.  J^eg. 


§  109.]  SPANISH    ISLANDS.  535 

"I  agree,''  added  the  Attornej'-General,  "that  our  occupation  of 
Cuba  is  now  other  than  analogous  to  a  military  occupation  of  a  foreign 
country  in  time  of  war.  Since  the  exchange  of  ratifications  of  the 
peace  treat}-  it  has  been  an  occupation  of  a  foreign  country-  in  time  of 
peace,  and  in  no  way  affected,  internationally  speaking,  b}-  the  circum- 
stance that  the  Army  has  been  used  as  the  agency.     (Calvo,  sec.  31^14.) 

'•.I  concede,  the  treat}-  having  been  duly  ratified,  that  Great  Britain 
has  a  right  to  appeal,  on  behalf  of  her  subjects,  to  the  rules  prevailing 
in  time  of  peace.  But  she  has  not  necessarily  the  right  to  ignore  the 
new  facts  which  have  followed  the  cessation  of  the  sovereignty  of 
Spain.  Nor  do  I  understand  that  the  charge  questions  our  duty  and 
right  as  asserted  in  the  joint  resolutions  of  April  '20,  1898,  now  partlv 
executed,  .  .  ^  which  contemplates  an  occupancy  of  Cuba  until 
'the  pacification  thereof,"  and  then  the  turning  over  of  the  island  to 
the  control  and  government  of  its  people.  In  performance  of  this 
duty,  we  are  accordingly  occupying  Cuba  and  preparing  to  turn  over 
the  control.  This  can  not  be  done  till  the  people  have  organized  a 
g-overnment  to  receive  it. 

''These  are  facts  which  are  to  be  reckoned  with  in  ascertaining  our 
obligations  with  regard  to  such  debts  as  that  government  may  take 
over  from  the  former  government  of  Cuba,  as  being  the  government 
of  the  same  nation  or  people,"" 

"The  facts  above  detailed  make  it  clear  that  within  the  meaning  of 
the  act  of  June  6,  1900.  Cuba  is  foreign  territory.  It  cannot  be 
regarded,  in  any  constitutional,  legal,  or  international  sense,  a  part  of 
the  territory  of  the  United  States. 

"While  ])y  the  act  of  April  25,  1898,  declaring  war  between  this 
country  and  Spain,  the  President  was  directed  and  empowered  to  use 
our  entire  land  and  naval  forces,  as  well  as  the  militia  of  the  several 
States,  to  such  extent  as  was  necessar\-  to  carry  such  act  into  effect, 
that  authorization  was  not  for  the  purpose  of  making  Cuba  an  integral 
part  of  the  United  States,  but  onh'  for  the  purpose  of  compelling  the 
relinquishment  by  Spain  of  its  authority  and  government  in  that 
island  and  the  withdrawal  of  its  forces  from  Cuba  and  Cuban  waters. 
The  legislative  and  executive  branches  of  the  Government,  ])y  the 
joint  resolution  of  April  20,  1898,  expressly  disclaimed  any  purpose 
to  exercise  sovereignty,  jurisdiction,  or  control  over  Cuba  'except  for 
the  pacification  thereof,'  and  asserted  the  determination  of  the  United 
States,  that  object  beitig  accomplished,  to  leave  the  goverinnent  and 
control  of  Cuba  to  its  own  people.  All  that  has  been  done  in  relation 
to  Cuba  has  had  that  end  in  view  and,  so  far  as  the  court  is  informed 
b}-  the  public  history  of  the  relations  of  this  country  with  that  island, 
nothing  has  been  done  inconsistent  with  the  declared  object  of  the  war 
^ith  Spain. 


"Griggs,  At. -Gen.,  Dec.  6,  1899,  22  Op.  654,  655-656. 


536  sovereignty:  its  acquisition  and  loss.         [§  110. 

"Cuba  is  none  the  less  foreign  territoiy,  within  the  meaning  of  the 
act  of  Congress,  because  it  is  under  a  military  governor  appointed  by 
and  representing  the  President  in  the  work  of  assisting  the  inhabit- 
ants of  that  island  to  establish  a  government  of  their  own,  under 
which,  as  a  free  and  independent  people,  they  may  control  their  own 
affairs  without  interference  by  other  nations.  The  occupancy  of  the 
island  In'  troops  of  the  United  States  was  the  necessary  result  of  .the 
war.  That  result  could  not  have  been  avoided  by  the  United  States 
consistently  with  the  principles  of  international  law  or  with  its  obliga- 
tions to  the  people  of  Cuba. 

"It  is  true  that  as  between  Spain  and  the  United  States — indeed,  as 
between  the  United  States  and  all  foreign  nations — Cuba,  upon  the 
cessation  of  hostilities  with  Spain  and  after  the  Treaty  of  Paris,  Avas 
to  be  treated  as  if  it  were  conquered  territory.  But  as  ])etween  the 
United  States  and  Cul)a  that  island  is  territory  held  in  trust  for  the 
inhabitants  of  Cul)a,  to  whom  it  rightfully  belongs  and  to  whose  exclu- 
sive control  it  will  be  surrendered  when  a  stable  government  shall 
have  been  established  I)}-  their  voluntary  action."* 

Xeely  r.  Henkel  (1900),  180  V.  S.  109,  119-120. 

The  President  is  authorized  to  do  whatever  he  finds  necessary  or  expedient 
for  the  proper  administration  of  government  in  Cul)a,  having  in  view  the 
pacification  of  the  island  and  the  establishment  of  order  and  industry. 

For  the  purpo.se  of  disbanding  the  insurgent  forces  in  Cuba,  the  President  is 
authorized  to  pay  some  or  all  of  the  soldiers  of  such  forces  either  out  of 
the  revenues  of  the  island  or  out  of  the  emergency  fund  provided  by  the 
act  of  January  5,  1899.     (Griggs,  Atty.-Gen.,  Jan.  14,  1899,  22  Op.  301.) 

By  the  proviso  relating  to  the  American  evacuation  of  Cuba,  inserted 

in  the  act  of  ]March  :i,  lltOl,  and  commonly  known  as 

Isle  of  Pines,  and    ^^^,  p^^^^  amendment,  it  is  declared  that  "the  Isle  of 

other  conditions     -,^.  ini  -^j^    ^    n  ^i  i  j-j 

Pines  shall   be  omitted  from  the  proposed  constitu- 

of  evacuation.  .  ,  . 

tional  boundar}'  of  Cuba,  the  title  thereto  being  left 
to  future  adjustment  by  treaty.""  The  provisions  of  this  amendment 
were  accepted  ))y  the  constitutional  convention  of  Cuba. 

11.   TrxriLA  AND  Other  Samoax  Islands. 

;j  110. 

As  early  as  1853.  if  not  earlier,  the  United  States  was  represented 
))y  a  conunercial  agent  at  Apia,  in  the  Samoan.  then 

Early  relations,         '  i  n     i    .i        x^       •       ^  tit  i    • 

conmionly  called  the  ^Navigators,  Islands,  and  in  .sev- 
eral su])sequent  appropriation  acts  provision  was  made  for  a  consul 
there.* 


"31  !^tat.  89.5,  897-898. 

'^In  the  Congressional  Directory  of  June  20,  18.54,  48,  may  be  found  the  name  of 
Aaron  Van  Camp  as  commercial  agent  at  Apia.  Information  as  to  claims  for  spolia- 
tions by  "wrongful  acts  of  the  commercial  agent  of  the  United  States  exercising 
authority"  at  Apia,  in  1855,  may  be  found  in  H.  Report  212,  35  Cong.  2  sess.;  H. 
Report  569,  36  Cong.  1  sess. ;  S.  Report  148,  36  Cong.  1  sess.  See,  also,  ^Ir.  Marcy, 
Sec.  of  State,  to  Mr.  Dobbin,  Sec.  of  Navy,  Jan.  13,  1857,  46  MS.  Dom.  Let.  244. 


§  110.]  SAMOAN   ISLANDS.  537 

February  IT,  1872,  (Commander  Meade,  of  the  U.  S.  S.  Narragan- 

xett,  entered  into  an  agreement  with  Maunga.  Great 
Meade  agreement:    (jjjjef  of  the  Bay  of  Pagopago  (pronounced  Pango- 

pango),  in  the  island  of  Tutuila,  whereby-  the  chief, 
who  professed  a  desire  for  the  friendship  and  protection  of  the  United 
States,  granted  to  the  Government  the  exclusive  privilege  of  establish- 
ing in  that  harbor  a  naval  station  for  the  use  and  convenience  of  United 
States  Government  vessels/'  May  22,  1872,  President  Grant  commu- 
nicated this  agreement  to  the  Senate,  saying  that  he  would  not  hesitate 
to  recommend  its  approval  but  for  the  protection  to  which  it  pledged 
the  United  States,  and  that  with  some  modification  of  the  obligation 
he  recommended  it  to  the  favorable  consideration  of  the  Senate/' 
About   the  same   time   the  attention  of   the   United   States   '"was 

directed,  by  highly  respected  commercial  persons,  to 
steinberger's  mis-  ^^  importance  of  the  g-rowing  trade  and  commerce  of 

the  United  States  with  the  islands  in  the  South  Pacific 
Ocean  and  to  the  opportunities  of  increasing  our  commercial  relations 
in  that  quarter  of  the  globe/*''  With  a  view  to  secure  trustworthy^ 
information  in  regard  to  the  Samoan  Islands,  a  special  agent  named 
Steinberger  was  sent  thither  by  the  Department  of  State  in  1873.  He 
accomplished  his  mission,  and  his  report  was  communicated  by  the 
President  to  Congress  on  April  21, 1874.'^  In  December,  1874,  he  was 
sent  back  to  the  islands  to  convey  to  the  chiefs  a  letter  from  the  Presi- 
dent and  some  presents.  Not  long  afterwards  rumors  reached  the 
United  States  that  he  had  set  up  a  government  in  the  islands  and  was 
administering  it;  and  it  was  said  that  he  had  assured  the  natives  that 
the  islands  were  under  the  protection  of  the  United  States.  These 
reports  led  the  House  of  Representatives,  on  March  28, 1876,  to  adopt 
a  resolution  instructing  the  Committee  on  Foreign  Affairs  to  inquire 
into  the  extent  and  character  of  Steinberger's  powers,  and  to  call  on  the 
Secretary"  of  State  for  correspondence  relating  to  his  mission.  The 
investigation  elicited  the  fact  that  his  visits  to  the  islands  '"were 
simply  for  the  purpose  of  observation  and  report;  that  his  mission 
had  no  diplomatic  or  political  significance  whatever,  and  that  he  had 
never  been  authorized  to  pledge  the  United  States  to  the  support  of 
any  government  he  might  form  or  assist  in  forming.'"'' 

After  making  a  second  report,  Steinberger  resigned  his  position  as 
special  agent  of  the  United  States.  As  ruler  of  Samoa  he  fell  into 
difficulties,  and  with  the  concurrence  of  the  American  consul,  who  was 

«H.  Ex.  Doc.  161,  44  Cong.  1  sess.  6. 
«'H.  Ex.  Doc.  161,  41  Cong.  1  sess.  6. 

c  Report  of  Mr.  Fish,  Secretary  of  State,  to  the  President,  May  1, 1876,  FT.  Ex.  Doc. 
161,  44  Cong.  1  sess. 
''S.  Ex.  Doc.  4.^,  48  Cong.  1  sess. 
«  Report  of  Mr.  Fish,  May  1,  1876,  11.  Ex.  Doc.  161,  44  Cong.  1  sess. 


538  sovereignty:  its  acquisition  and  loss.         [§110. 

at  open  variance  with  him.  he  was  deported  on  a  British  man-of-war. 
On  March  18,  1876.  the  American  consul  at  Apia  transmitted  to  the 
Department  of  State  a  copy  of  a  document  said  to  have  been  found 
among  Steinberger's  papers  after  his  arrest,  and  which  purported  to 
be  an  agreement  between  him  and  the  house  of  Godefl'roy  &  Son.  of 
Hamburg,  entered  into  l)efore  his  return  to  Samoa,  bv  which,  for  a 
certain  commission,  he  undertook  to  exercise  all  his  influence  in 
Samoa  in  any  position  he  might  occupy  for  the  furtherance  of  the 
German  firm's  trade." 

In  1877  a  native  of  rank,  named  Mamea.  was  sent  b}'  the  chiefs  of 
Samoa  to  the  United  States  as  ambassador  to  conclude 

^states.  ^  ^  ^  treaty.  A  deputation  of  chiefs  had  in  the  same  year 
made  an  unsuccessful  application  for  annexation  to 
Great  Britain,  and  Mamea  came  to  the  United  States  with  a  view 
to  obtain  at  least  the  protection  of  this  Government.  President 
Hayes,  in  his  first  annual  message,  1877,  stated  that  the  object  of 
Mamea 's  mission  was  •'  to  invite  the  Government  of  the  United  States 
to  recognize  and  protect  their  [Samoan  Islands]  independence,  to 
establish  commercial  relations  with  their  people,  and  to  assist  them  in 
their  steps  toward  regulated  and  responsible  government."'  He 
observed  that  the  subject  was  deemed  worthy  of  respectful  attention 
and  that  '"the  claims  upon  our  assistance  by  this  distant  community 
will  be  carefully  considered."' 

On  January  16,  1878,  a  treaty  between  the  United  States  and  Samoa 
was  concluded  at  Washington.  By  the  l^nd  article,  the  Government 
of  the  United  States  was  granted  ''the  privilege  of  entering  and  using 
the  port  of  Pagopago.  and  establishing  therein  and  on  the  shores 
thereof  a  station  for  coal  and  other  naval  supplies,""  and  the  Samoan 
Government  engaged  that  it  would  thereafter  ""neither  exercise  nor 
authorize  any  jurisdiction  within  said  port  adverse  to  such  rights  of 
the  United  States  or  restrictive  thereof.""^  In  the  5th  article  it  was 
provided  that  if  any  difl^erences  should  arise  between  the  Samoan  Gov- 
ernment and  any  other  government  in  amity  with  the  United  States, 
the  Government  of  the  United  States  Avould  "employ  its  good  offices 
for  the  purpose  of  adjusting  those  diflerences  upon  a  satisfactory  and 
solid  foundation.""  No  provision  was  made  for  a  protectorate.  In 
1877  however,  and  again  in  1878.  the  flag  of  the  United  States  was 
I'aised  by  diflerent  American  consular  representjitives  at  Apia  as  the 
sign  of  a  protectorate,  but  on  neither  occasion  was  the  act  sustained 
by  the  Ignited  States. 

"11.  Ex.  Doc.  181,  44  Cong.  1  gesr^.,  12S;  Nineteenth  Century,  February,  1886, 
29S-:^00. 

''See,  as  to  the  American  construction  of  this  stipulation,  Mr.  Foster,  Sec.  of  State, 
to  Mr.  White,  cliar^re  at  London,  Nov.  21,  1892.  F(jr.  Rel.  1892,  243. 


§  110.]  SAMOAN   ISLAKDS.  539 

January  24,  1879,  a  treat}'  was  concluded  between  Germany  and 

Samoa,  b}'  which  the  latter  conceded  to  the  former  the 

Treaties  with  Ger-   j.jg.]^^  ^^  establish  a  naval  station   in   the   harbor   of 

.7^.  Saluafata,  and  engaged  not  to  grant  a  similar  right  in 

that  harbor  to  an}-  other  nation. 

On  August  28,  in  the  same  year,  a  treaty  was  concluded  between 

Samoa  and  Great  Britain,  by  the  eighth  article  of  which  a  right  was 

granted  to  the  latter  to  establish  '"  a  naval  station  and  coaling-  depot" 

on  the  shores  of  a  Samoan  harbor  thereafter  to  be  designated  hy  her 

Britainic  Majesty,  there  being  excepted  from  this  right  the  harbors  of 

Apia  and  Saluafata,  and  "that  part  of  the  harbor  of  Pagopago"  which 

might  thereafter  be  '"  selected  by  the  Government  of  the  United  States 

as  a  station."''^ 

President  Hayes  stated  in  his  third  annual  message,  1879,  that  a 

naval  vessel  had  been  sent  to  the  Samoan  Islands  to 
American  rights  ,  i    i.   i  •  j;   ^i  •    -i 

.    „  make  survevs  and  take  possession  of  the  privileges 

in  Pagopago.  ■  .  ■■■  . 

conceded  to  the  United  States  by  Samoa  in  the  harbor 
of  Pagopago,  and  that  a  coaling  station  was  to  be  established  there 
which  would  be  convenient  and  useful  to  United  States  vessels.  In  his 
fourth  annual  message.  1880,  he  recommended  that  the  jurisdiction  of 
the  United  States  consul  at  Apia  be  "increased  in  extent  and  impor- 
tance so  as  to  guard  American  interests  in  the  surrounding  and  out- 
lying islands  of  Oceanica.'*^ 

For  a  number  of  years  before  the  treaties  with  foreign  powers  were 

made,  the   situation    in   the  islands. was  exceedingly 
Native  disturb-  , .    »      ,  rw^,  , .  i.  i    j. 

.    -  unsatistactorv.     ihe  natives,  unaccustomed  to  a  cen- 

ances  in  Samoa.  i.       i  ' 

tralized  government,  were  re.stive  under  the  exercise 

of  authority,  and  their  discontent  was  ministered  to  and  aggravated  b}'' 

the  intrigues  and  rivalries  of  foreign  interests.     This  condition  of  things 

gave  rise  from  time  to  time  to  grave  distur})ances,  and  not  infrequently 

to  open  hostilities,  between  the  native  factions.     Early  in  1885  a  crisis 

occurred  in  the  affairs  of  the  islands. 

On  November  10, 1884,  a  treaty  was  signed  at  the  German  consulate 

at  Apia  by  Malietoa,  King  of  Samoa,  and  Dr.  Steuhel, 

acting  Imperial  German  consul,  ])v  which  a  German- 
Germany.  ,  .  . 

Samoan  council  of  state  was  to  be  formed,  a  German 

adviser  was  to  be  appointed  to  the  King,  and  a  special  police  force  was 

to  be  appointed  and  to  be  under  the  control  of  the  German  meniber  of  the 

Samoan  Government.''    The  English  and  American  residents  objected 

"See  Mr.  Foster,  Sec.  of  State,  to  Mr.  White,  charge  at  London,  Xov.  21,  1892,  For. 
Rel.  1892,  24.3.  See,  also,  Mr.  Evarts,  Sec.  of  State,  to  Mr.  Thoin])Son,  Sec.  of  Navy, 
April  8,  1880,  132  MS.  Doni.  Let.  434. 

'^See,  also,  Mr.  pjvart«.  Sec.  of  State,  to  ^Ir.  von  Thielmann,  June  15,  1877,  MS. 
Notea  to  Germany,  IX.  326;  Mr.  Evart.s,  Sec.  of  State,  to  Mr.  Welsh,  May  15,  1879, 
MS.  Inst.  Great  Britain,  XXV.  405. 

«H.  Ex.  Doc.  238,  50  Cong.  1  .sess.  5. 


540  sovereignty:  its  acquisition  and  loss.         [§  110. 

to  the  convention,  and  Malietoa,  when  advised  of  its  full  meaning, 
refused  to  carry  it  out.  On  December  31,  1885,  the  German  consul, 
as  an  act  of  reprisal,  attached  the  sovereign  rights  of  Malietoa  in  the 
municipality  of  Apia,  and  an  armed  force  from  the  German  man-of-war 
AJhatross  hauled  down  the  Samoan  flag  from  the  Government  House." 

Mr.  Bayard,  Secretary  of  State,  when  advised  of  these  events, 
instructed  the  American  minister  at  Berlin :  '*"  You  will 

„''/°°°  temperately  but  decidedlv,  in  oral  conference,  notify 

United  States.        ,      Vi  "        •    •  ^       "^        '  n-   •        ^ 

the  German  mmister  for  foreign  affairs  that  we  expect 

nothing  will  be  done  to  impair  the  rights  of  the  United  Stjites  under 
the  existing  treaty  with  Samoa,  and  anticipate  fullilment  of  solemn 
assurances  heretofore  and  recently  given  that  Germany  seeks  no  exclu- 
sive control  in  Samoa."*  The  German  Government  replied  that  it 
intended  to  maintain  the  condition  which  had  previously  existed,  and 
that  if  any  wrong  had  been  done  it  should  be  righted.''  Affairs 
remained  in  this  state  till  May  13, 1886,  when  the  United  States  consul, 
Greenebaum,  in  compliance  with  the  request  of  Malietoa,  issued  a 
proclamation  declaring  the  islands  to  be  under  the  protection  of  the 
United  States,  and  raised  the  Samoan  flag  on  the  Government  House 
with  the  American  flag  over  it.'' 

June  1,  1886,  the  ministers  of  the  United  States  at  London  and 
Berlin  were  instructed  to  say  that  the  claim  of  an  American  protecto- 
rate over  Samoa  b}'  the  United  States  consul  at  Apia  was  wholly 
unauthorized  and  disapproved,  no  separate  protectorate  by  any  nation 
being  desired;  and  to  suggest  that  the  British  and  German  ministers 
at  Washington  be  instructed  to  confer  with  the  Secretary  of  State  with 
a  view  to  the  establishment  of  order.  This  suggestion  was  accepted 
with  the  modification  that,  before  the  conference  was  held,  each  of  the 
three  Governments  should  send  an  agent  to  Samoa  to  investigate  and 
report  upon  the  situation  in  the  islands.'' 

"\l.  Ex.  Dov.  2:>S,  50  Cong'.  1  ses.s.  24.  "The  latest  intelligence  from  Samoa  shows 
that  the  native  chiefn  and  the  King  resenting  the  action  of  the  German  consul  in 
constraining  them  to  sign  a  treaty  giving  liiin  greater  jurisdictional  powers,  had  sent 
a  special  message  to  Fiji  offering  the  islands  to  the  British  Crown.  It  may  he  inferred 
from  this  that  the  (Jerman  consul's  actif)n  in  raising  the  (ierman  flag  was  taken  to 
prevent  annexation  to  (ireat  Britain.  It  is  douhtful  whether  exjiediency  or  treaty 
right  gives  us  any  ground  for  intervening  to  prevent  annexation."  (Mr.  Frelinghuy- 
sen,  Sec.  of  State,  to  :\rr.  :\Iiller,  M.  C,  Feh.  27,  1885,  154  ISIS.  Dom.  Let.  352.) 

''H.  Ex.  Doc.  238,  50  Cong.  1  sess.  15,  telegram  of  .January  12,  1886.  See  Mr. 
Bayard,  Sec.  of  State,  to  ]\Ir.  von  Alvenslel)en,  German  min.,  Dec.  9,  1885,  and  Jan. 
11,  1886,  MS.  Notes  to  (Tcrmany,  X.  404,  442. 

m.  Ex.  Doc.  238,  50  Cong.  1  sess.  16.  See  ^Nlr.  Bayard,  Sec.  of  State,  to  Mr.  Carter, 
Hawaiian  Min.,  Nov.  11,  1885,  MS.  Notes  to  Hawaii,  I.  109. 

'in.  Ex.  Doc.  238,  50  Cong.  1  sess.  24,  26. 

MI.  Ex.  Doc.  238,  50  Cong.  1  sess.  29.  See  :\rr.  Bayard,  Sec.  of  State,  to  Mr.  Whit- 
ney, Sec.  of  Navy,  ]\Iarch  31  and  April  1,  1886,  159  MS.  Dom.  Let.  483,  498. 


§  110.]  SAMOAN    ISLANDS.  541 

This  preliminary  having  been  accompli.shed,  a  conference  wa.s  held 

at  Washington  in  June  and  Jul}',  1887,  between  the 

'  ,oo^         Secretary  of  State  and  the  British  and  German  min- 
ence,  1887. 

isters.  It  was  adjourned  on  the  26th  of  July  b}'^ 
unanimous  consent  till  the  autunm.  in  order  that  the  members  might 
consult  their  respective  Governments  with  a  view  to  reconcile  certain 
divergencies  of  view  which  the  discussions  had  disclosed.  The  German 
Government  proposed,  in  the  conference,  a  plan  to  commit  the  practical 
control  of  Samoan  affairs  to  a  single  foreign  official,  called  an  adviser 
to  the  King,  and  to  be  appointed  Iw  the  power  having  the  preponder- 
ence  of  commercial  interests.  The  plan  proposed  by  the  United  States 
was  to  commit  the  administration  of  the  laws  to  an  executive  council 
to  be  composed  of  the  Samoan  King  and  vice-king  and  three  foreigners, 
one  of  whom  should  be  designated  bv  each  of  the  treat}'  powers,  but 
who  should  hold  their  commissions  and  receive  their  compensation 
from  the  native  Government  so  as  to  be  independent  of  the  influence 
and  control  of  the  powers  designating  them.  It  was  also  proposed  by 
the  United  States  that  any  arrangement  that  might  be  devised  should 
be  embodied  by  the  powers  in  identic,  but  several  and  independent, 
treaties  with  Samoa.  Germany  objected  to  the  plan  of  the  United  States 
on  the  ground  that  it  did  not  promise  a  solution  of  existing  difficulties, 
which  were  largely  due  to  rival  foreign  interests.  The  British  minister 
supported  the  German  minister,  and,  incidentally,  the  German  plan.^ 
It  was  the  understanding  of  the  United  States,  based  upon  the  dip- 
lomatic correspondence  and  the  course  of  the  negotia- 
p  ure  0      e     ^Jqj^^  ^^^^  ^.j^g  statiis  quo  in  the  islands  should  be  pre- 

status  quo.  ^  i         i  >, 

served  pending  the  settlement  b}'  the  three  powers.* 
Immediately  after  the   suspension  of   the  conference,  however,  the 

«For.  Eel.  1894,  App.  I.  508.  The  protocols  of  the  conference  are  printed  in  S. 
Ex.  Doc.  102,  50  Cong.  2  sess.,  and  are  reprinted  in  For.  Rel.  1889,  204-2.36.  These 
protocols  were  prepared  by  the  editor  of  the  present  work,  who  was  present  at  the 
conference. 

Light  is  thrown  on  the  course  of  the  British  minister  in  the  conference  by  a  dis- 
patch of  the  British  ambassador  at  Berlin  to  liis  Government  January  24,  1885,  nar- 
rating a  conversation  with  Prince  Bismarck  in  relation  to  the  "political  e.strange- 
ment"  between  the  two  countries.  During  the  interview  Prince  Bismarck  read  tc 
the  British  ambassador  an  instruction  which  he  had  sent  during  the  previous  year 
to  the  German  ambassador  at  London.  This  instruction,  said  the  British  ambassa- 
dor, "was  a  very  remarkable  one.  It  stated  the  great  importance  which  the  Prince 
attached  to  the  colonial  question,  and  al.«o  the  friendship  of  Germany  and  England. 
It  pointed  out  that  in  the  commencement  of  German  colonial  enterprise  England 
might  render  signal  service  to  Germany,  and  said  that  for  such  services  Germany 
would  use  her  best  endeavors  in  England's  ]>ehalf  in  questions  affecting  her  interests 
nearer  home."  It  also  intimated  that,  if  an  understanding  could  not  be  reached 
with  England,  Germany  would  .seek  assistance  from  France.  To  give  point  to  this 
intimation.  Prince  Bismarck  also  read  to  the  and>a,«sador  a  draft  of  another  instruction 
which  he  was  just  then  sending  to  London,  in  which  the  Egyptian  question  wasmen- 
tione<l.     (H.  Ex.  Doc.  238,  -50 Cong.  1  sess.  61-63;  German  Staatsarchiv,  XHV.  252.) 

6H.  Ex.  Doc.  238,  50  Cong.  1  sess.  114-116. 


542  sovereignty;  its  acquisition  and  loss.         [§  110. 

Gernmn  (xovernnient,  without  previous  notice  to  the  other  powers, 
instructed  its  representative  in  Samoa  to  make  a  demand  on  Malietoa 
for  reparation  for  certain  wrongs  alleged  to  have  been  committed  by 
him  and  his  people  long  before  the  assembling  of  the  conference,  and 
if  he  should  be  unwilling  or  unable  to  afford  satisfaction  to  declare  war 
upon  him  ''  personally.""  War  was  declared,  Malietoa  was  dethroned 
and  deported,  and  Tamasese,  who  had  some  time  previously  been  vice- 
king,  but  had  lately  been  in  arms  against  the  government,  was  installed 
as  King,  Avith  a  German  named  Brandeis,  who  had  long  been  connected 
with  German  commercial  interests  in  Samoa,  as  adviser.*  In  Septem- 
ber, 1888,  however,  many  of  the  natives  revolted  against  the  govern- 
ment of  Tamasese,  and  chose  Mataafa  as  King.  Hostilities  ensued 
and  some  German  marines,  who  had  been  sent  ashore,  were  ambushed 
by  Mataafa's  forces,  and  some  of  them  were  killed.  Martial  law  was 
proclaimed  by  the  German  consul  at  Apia. 

"Had  the  Government  of  the  United  States  entertained  any  designs 

of  territorial  aggrandizement  or  of  political  control  in 
Attitude    of    the    ,,  ,i  ij     i  u  i-   i      i      -i.     • 

TT  •.  ^  «.  .         Samoa,    thev    could   have    been   accomi)lished,    it    is 
United  States.       i     , .  i        .'  ^  ...  ^  .      .  .     , 

believed,  with  much  satisfaction  to  a  majority  of  the 

natives  and  with  little  opposition  from  any  of  them,  long  prior  to  the 
date  of  cither  the  British  or  the  German  treat}'.  But  another  and 
wideh'  different  policy  has  guided  the  action  of  the  United  States  in 
respect  to  the  native  communities  in  the  southern  Pacific,  and  it  is 
not,  I  apprehend,  claiming  too  much  credit  for  this  Government  to 
express  the  opinion  that  the  example  it  exhibited  of  treating  with 
Samoa  as ,  an  independent  state  led  to  a  similar  course  and  a  similar 
acknowledgment  of  native  independence  in  that  island  group  by  Ger- 
man}' and  Great  Britain.   .   .   . 

"  Should  the  opinion  which  has  been  expressed  as  to  the  part  taken 
by  the  United  States  in  seeking  to  preserve  the  independence  of  the 
Samoan  Islands  seem  in  any  degree  extravagant,  it  will  no  longer 
appear  to  be  so  when  what  has  taken  place  in  the  last  three  years  in 
regard  to  other  island  groups  in  the  Pacific  is  considered. 

"  Prior  to  that  period  Spain  was  holding  the  Ladrone  or  Marianne 
and  the  Philippine  Islands,  and  had  also  laid  the  basis  of  a  claim  of 
title  to  the  Caroline  Islands,  although  she  did  not  maintain  an  active 
government  there. 

"Between  the  years  1842  and  1847  France  established  a  protector- 
ate over  the  Marquesas,  Society,  and  Paumota  groups,  and  in  1853 
occupied  New  Caledonia.  In  1864  she  formally  assumed  control  of 
the  Loyalty  Islands,  and  in  1880  added  Tahiti  to  the  list  of  her 
colonies  in  the  Pacific. 

«  H.  Ex.  Doc.  238,  50  Cong.  1  sess.  84,  89. 
bH.  Ex.  Doc.  238,  50  Cong.  1  sess.  91-95. 


§  110.]  SAMOAN    ISLANDS.  ■  .543 

"In  addition  to  the  continent  of  Australia,  to  whicti  Great  Britain 
holds  a  comparatively  ancient  title,  that  Government  had  also  acquired 
the  Fiji  Islands  and  New  Zealand,  the  sovereignty  of  the  latter  being 
ceded  in  1840  and  that  of  the  former  on  the  10th  of  October,  1S71. 

"Germany  had  not  then  entered  upon  her  present  active  policy  of 
colonization  in  the  Pacific,  although  her  subjects  had  carried  on  a  con- 
siderable commerce  there,  and  had  established  places  of  trade  on  vari- 
ous islands,  including  the  Samoan. 

"  Such  was  the  condition  of  affairs  at  the  beginning  of  the  present 
decade,  nor  was  there  observable  at  that  time  any  marked  evidence  of 
the  desire  for  new  territorial  acquisitions;  but,  beginning  in  1884, 
numerous  island  groups  have,  in  rapid  succession,  passed  in  whole  or 
in  part  under  the  control  of  various  European  powers,  until  almost 
the  last  vestige  of  native  autonomy  in  the  islands  of  the  Pacific  has 
been  obliterated. 

"The  year  1884  witnessed  the  occupation  })v  Germany  of  the  north- 
ern side  of  New  Guinea,  from  Cape  William  to  Astrolabe  Bay,  the 
imperial  flag  being  hoisted  at  twelve  different  points.  Almost  coinci- 
denth'  Great  Britain  occupied  the  south  coast  of  the  island,  and  in 
the  months  of  November  and  Deceml^er,  in  the  same  year,  seized  and 
occupied  the  Louisade  group,  Woodlark  Island,  and  Long  and  Rook 
Islands. 

"In  the  following  3'ear  arose  the  dispute  between  Germany  and 
Spain  over  the  Carolines,  which  was  terminated  by  the  protocol  signed 
at  Rome  on  the  iTth  of  December,  1885,  under  which  Germany  acknowl- 
edged the  sovereignty  of  Spain  over  these  islands  and  the  Pelew  group, 
and  they  have  now  passed  finally  under  Spanish  control. 

"But  these  events  were  merely  the  precursors  of  others,  of  which 
the  seizure  by  France  in  1886  of  the  New  Hebrides  was  not  the  most 
significant.  On  the  f>th  of  April  of  that  year  a  joint  declaration  was 
made  by  Germany  and  Great  Britain,  which  contemplated  the  absorp- 
tion by  those  two  powers  of  almost  all  the  independent  territory  in  that 
part  of  the  Pacific  Ocean  called  the  West  Pacific,  lying  between  the 
loth  degree  of  north  and  the  30th  degree  of  south  latitude,  and  between 
the  lH.5th  degree  of  longitude  west  and  the  13<»th  degree  of  longitude 
east  of  Greenwich,  which  had  not  already  been  occupied  by  some  for- 
eign power.  Through  that  part  of  the  Pacific  included  in  those  bounds 
of  latitude  and  longitude  a  line  of  division  was  drawn  to  mark  the 
respective  spheres  of  British  and  German  influence  and  annexation,  and 
each  joint  declarant  agreed  not  to  make  any  acquisitions  of  territor}', 
nor  to  establish  protectorates,  nor  to  oppose  the  operations  of  the  other 
in  the  sphere  of  action  respectively  assigned  to  it." 

"Under  this  declaration  and  agreement,  from  which  Samoa,  Tonga, 
and  Nine  Island  were  excepted,  and  by  the  line  of  division  drawn  as 

«H.  Ex.  Doc.  238,  50  Cong.  1  sess.  134. 


544  sovereignty:  its  acquisition  and  loss.         [§  110. 

above  stated,  New  Ireland,  New  Britain,  and  the  adjacent  western  half 
of  the  Solomon  group  passed  under  the  dominion  of  Germany,  and 
certain  islands  west  of  the  line  to  Great  Britain. 

''On  the  1st  of  August,  in  the  same  year,  the  latter  Government 
took  possession  of  the  Kermadec  Islands,  and  by  the  imperial  decree 
of  the  18th-  of  the  ensuing  month  the  Marshall,  Brown,  and  Provi- 
dence Islands  and  groups  were  occupied  by  German3\ 

''As  the  result  of  what  has  been  above  detailed,  of  the  vast  aggre- 
gate of  territory  in  the  Pacific  Ocean,  but  a  few  island  groups,  con- 
taining a  few  thousand  square  miles,  remain  to-day  as  independent  and 
autonomous. 

"'Long  anterior  the  United  States  had  acquired,  by  discovery  and 
occupation,  the  uninhabited  island,  or  ocean  reef,  of  Midway,  as  a 
possible  coaling  station. 

"In  view  of  those  facts,  it  is  unnecessary  to  emphasize  the  impor- 
tance attached  by  this  Government  to  the  maintenance  of  the  rights  to 
which  the  United  States  has  become  entitled  in  any  of  the  few 
remaining  regions  now  under  independent  and  autonomous  native 
governments  in  the  Pacific  Ocean." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Pendleton,  minister  to  Germany,  January 
17,  1888,  H.  Ex.  Doc.  238,  50  Cong.  1  sess.  109,  111-113. 

In  September,  1888,  a  native  revolt  took  place  against  the  Govern- 
ment of  Tamasese.  Mataafa  was  proclaimed  king  by 
Hostilities  between  ^j-,g  opposition,  and  a  civil  war  ensued.     On  January  10, 

ermany  an  a-  ^gs..,^  Count  Arco,  the  German  minister  at  Washing- 
ton,  informed  Mr.  Bayard  that  the  German  comman- 
der in  Samoan  waters,  after  notice  to  the  commanders  of  the  American 
and  British  men-of-war,  had  landed  forces  for  the  protection  of  Ger- 
man plantations;  that  these  forces  on  landing  were  attacked  by  the 
Samoans.  under  the  command  of  an  American  named  Klein,  and  had 
sufl'ered  a  loss  of  fifty  men  in  killed  and  wounded.  A  state  of  war 
with  Samoa  was  therefore  announced  l)v  Germany',  and  Count  Arco 
was  instructed,  as  an  American  was  alleged  to  have  commanded  the 
attacking  Samoans,  to  make  a  complaint  to  the  United  States.  At  the 
same  time  he  was  ordered  to  say  that  the  treaty  rights  of  the  United 
States  would  be  respected  l)y  Germany  luider  all  circmnstances,  as 
well  as  all  the  rights  of  the  treaty  powers.  The  German  (xovernment 
also  invited  the  United  States  to  join  in  an  active  effort  to  restore  calm 
and  (|uiet  in  the  islands,  in  the  interest  of  all  the  treaty  powers." 

The  Government  of  the  I'nited  States  replied  that  it  had  no  knowl- 
edge, nor  an}^  reason  to  believe,  that  Klein  was  a  citizen  of  the  United 
States,  and  that  it  was  certain  that  he  "was  not,  and  never  had  been, 


"S.  Iv\.  Doc.  6S,  50  Cong.  2  sess.     See  the  full  text  of  Prince  Bismarck's  communi- 
cation, subsequently  made,  H.  Ex.  Doc.  118,  50  Cong.  2  sess.  15. 


§  110.]  SAMOAN    ISLANDS.  545 

in  any  way  connected  with  it.s  public  service,  nor  actin<^"  under  color 

or  pretense  of  its  authority.'' "     The  President  had  already  triven  orders 

looking  to  the  protection  of  American  citizens  and  their  property  in 

Samoa,  and  was  ready  to  give  his  cooperation  for  the  restoration  of 

peace  and  order  in  the  islands;  and  to  this  end  it  was  suggested  that,  as 

the  free  election  l)y  the  Samoans  of  a  king  was  a  point  agreed  on  in 

the  summer  of  18ST,  the  carrying  out  of  that  measure  would  tend  to 

alia}'  the  existing  strife.     It  was  also  stated  that  Admiral  KimlxM'ly, 

commanding  the  United  States  naval   forces  in  the  Pacitic.  had  been 

ordered    to    proceed    in    his    flagship   to   Apia,    and  the    hope   was 

expressed  that  instructions  based  on  principles  of  friendly  justice  and 

considerate  moderation  would   be  given   to   the   commanders  of   the 

imperial  naval  forces.'' 

Admiral  Kimberly  was  instructed  that  the  United  States  was  willing 

to  cooperate  in  restoring  order  in  Samoa  '"on  the 
Instructions  to  Ad-  i-i..ii.ii  .•  j?t  •  -^ 

.    ,^.   ^    ,       l)asis    of    the  full    preservation    of    American   treatv 
miral  Kimberly.        .  ^  . 

rights  and  Samoan  authority,  as  recognized  and  agreed 
to  by  (xermany.  Great  Britain,  and  the  United  States,''  and  that  the 
German  Government  had  been  so  informed.  He  was  to  extend  full 
protection  and  defense  to  American  citizens  and  property,  and  inform 
himself  as  to  the  situation:  to  protest  against  the  subjugation  and  dis- 
placement of  the  native  government  by  Germany,  as  in  violation  of 
the  positive  agi'eement  and  understanding  between  the  treaty  powers, 
but  to  inform  the  representatives  of  the  British  and  German  Govern- 
ments of  his  readiness  to  cooperate  in  causing  all  treaty  rights  to  be 
respected  and  in  restoring  peace  and  order  on  the  basis  of  the  recog- 
nition of  the  Samoan  right  to  independence.'' 

President  Cleveland,  in   communicating  these  papers  to  Congress, 
said:   '"Acting   within  the  restraints  which   our  Con- 
President    cieve-    stitution  and  laws  have  placed  upon  executive  power, 

,=  !non  '    1  have  insisted  that  the  autonomv  and   independence 
Jan.  15,  1889.  ,   _^  -  i  t 

of  Samoa  should  l>e  scrupulously  preserved  according 

to  the  treaties  made  with    Samoa  l)y  the  powers  named  and  their 

agreements  and  understandings  with  each  other.     I  have   protested 

against  eveiy  act  apparently   tending  in   an   opi)Osite   direction,   and 

during  the  existence   of  internal  disturbance  one  or  more  vessels  of 

« Klein,  and  three  natives  who  were  with  liim,  swore  that  he  advi.sed  the  natives 
not  to  fire,  and  hailed  the  (Jernian  boats  to  warn  them  of  their  danger;  that  the 
German  marines  fired  first,  and  that  he  did  not  advise  the  Samoans  to  i-eturn  the 
fire.  Two  other  natives  swore  that  he  hailed  the  boats,  but  that  he  took  connnand 
of  the  Samoans  in  the  ensuing  fight.  (Correspondence  respecting  affairs  in  Samoa, 
printed  for  the  use  of  the  Am.  Cc)mmissioners  to  Berlin. ) 

f'Mr.  Bayard,  Sec.  of  State,  to  Count  Arco,  German  min.,  Jan.  12,  1SS9,  S.  Ex. 
Doc.  68,  .50  Cong.  2  sess.  19-21. 

''Mr.  AVhitney,  Sec.  of  the  Navy,  to  Adm.  Kimberly,  .lau.  11,  1889,  S.  Ex.  Doc.  68, 
.50  Cong.  2  sess.  21. 

H.  Doc.  551 35 


54B  S()verp:ignty:  its  acquisition  and  loss.  [§110. 

war  have  been  kept  in  Sanioan  waters  to  protect  American  citizens  and 
property.  .  .  .  riie  attention  of  the  Congress  is  especially  called 
to  the  instructions  given  to  Admiral  Kimberly,  dated  the  11th  instant, 
and  the  letter  of  the  Secretary  of  State  to  the  German  minister,  dated 
th(>  L2th  instant,  which  will  be  found  among  the  papers  herewith  sub- 
mitted. .  .  .  The  subject  in  its  present  stage  is  submitted  to  the 
wider  discretion  conferred  })y  the  Constitution  upon  the  legislative 
branch  of  the  (rovermnent."" 

On  rFanuary  31,  1881>,  the  minister  of  thr^  United   States  at  Berlin, 
on  the  strength  of  advices  from  Apia  that  the  German 

consul  had  declared  his  Government  to  ])e  at  war  with 

assurances. 

Mataafa.  and  Samoa  to  l)e  under  martial  law.  was 
instructed  to  say  that  the  United  States  iissumed  that  German  officials 
in  the  islands  would  ])e  instructed  carefully  to  refrain  from  interfer- 
ence with  American  citizens  and  property  there,  since  the  United 
States  could  not  concede  that  German  jurisdiction  could  be  extended 
by  the  declaration  of  martial  law  so  as  to  include  control  of  Americans. 
Prince  Bismarck  replied  that,  although  to  a  certain  extent  international 
law  wovild  not  prevent  such  a  measure,  he  was  of  opinion  that  the 
military  authority  had  gone  too  far  in  the  particular  instance,  and  that 
instructions  had  been  given  to  withdraw  that  part  of  the  proclamation 
which  related  to  foreigners.  The  German  consul  had  also  been 
instructed  to  withdraw  a  request  which  he  had  made  to  the  native 
authorities  that  the  administration  of  the  islands  might  l)e  temporarily 
handed  over  to  him.  such  a  request  not  l)cing  in  conformity  with 
previous  promises  touching  the  neutrality  and  independence  of  Samoa.* 
On  the  -JStli  of  January,  188*J,  the  German  minister  at  Washington 

stated  that  a  proposition   from  his  Government  for  a 

Renewal  of  confer-  ,.  .,  i  -i        t^ 

conference  was  on  its  wav  l)v  mail.     It  was  communi- 
ence.  '       ^ 

cated  to  the  De})artment  of  State  on  the  Irth  of  Feb- 
ruary. It  proposed  "a  resumption  of  the  consultation  which  took 
place  between  the  representatives  of  Germany,  England,  and  the 
United  States  in  1887,  at  Washington,  and  at  that  time  adjourned  with- 
out any  possil)ility  of  their  representatives  coming  to  any  agreement." 
Berlin  was  suggested  as  the  place  of  meeting.  It  was  also  stated  that 
it  was  not  the  intention  of  Germany  to  i)ut  in  (piestion  the  independ- 
ence of  the  i.sland  group  nor  the  (Mpial  rights  of  the  powers. 

The  proposals  of  Prince  Bismarck  were  accei)ted  with  a  stateiiuMit 
that  it  appeared  to  ])e  essential  that  a  truce  should  be  forthwith  pro- 
claimed and  further  armed  action  arrested,  and,  except  as  the  situation 
might  t)e  changed  ))v  the  free  election  of  a  king  ])v  the  natives, 
that  the  atfaii"s  in  the  islands  should  remain  //?  sfafi/  (juo  pending  the 
conference.'' 


<'  Mesi-age  of  Jan.  15,  1889,  S.  Ex.  Doc.  6S,  .^0  Cong.  2  ses8, 
''II.  Ex.  Doi-.  102,  TiO  Conjr.  2  se.s<. 
<^tf.  Ex.  Doc.  102,  50  Cong.  2  .se.ss.. 


§  110.]  SAMOAN    ISLANDS.  547 

With  certain  ultimate  reservations,  these  conditions  were  accepted, 
and  it  was  agreed  that  a  conference  should  be  held;  but,  in  view  of 
the  approaching-  end  of  the  Administration,  the  appointment  of  pleni- 
potentiaries on  the  part  of  the  United  States  was  left  b}-  President 
Cleveland  to  his  successor.-' 

The  plenipotentiaries  appointed  b}-  the  United  States  were  Messrs. 

John  A.  Kasson,  William  Walter  Phelps,  and  George 

^    ,.  H.Bates;  bv  Germanv,  Count  Herbert  von  Bismarck, 

Berlin.  .         "  , 

Baron  von  Holstein,and  Dr.  Krauel;  by  Great  Britain, 

Sir  Edward  Malet,  Mr.  Charles  Stewart  Scott,  and  Mr.  Joseph  Archer 
Crowe.  The  instructions  of  the  American  plenipotentiaries  were 
signed  by  Mr.  Blaine,  as  Secretary  of  State,  and  bore  date  April  11, 
1889.  They  were  comprehensive  in  their  nature.  With  regard  to  the 
plan  presented  by  Mr.  Bayard  in  the  conference  of  18ST  for  the  estab- 
lishment in  Samoa  of  an  executive  council  to  consist  of  the  Samoan 
King  and  vice-king  and  three  foreigners,  one  of  whom  should  ])e  nom- 
inated })}'  each  of  the  three  treaty  powers,  but  who  should  l>e  appointed 
and  paid  by  the  native  Government — a  plan  which  was  to  be  carried  out 
through  identic,  yet  separate  and  independent  treaties  with  Samoa — 
]VIr.  Blaine  said:  ''This  scheme  itself  goes  bej'ond  the  principle  upon 
which  the  President  desires  to  see  our  relations  with  the  Samoan  Gov- 
ernment based,  and  is  not  in  harmony  with  the  established  policy  of 
this  (iovernment.  For,  if  it  is  not  a  joint  protectorate,  to  which  there 
are  such  grave  and  obvious  objections,  it  is  hardh'  less  than  that,  and 
does  not  in  any  event  promise  efficient  action.""  The  plenipotentiaries 
were  also  to  propose  as  the  basis  of  the  conference  the  restoration  of 
the  sf(/tu-'i  quo  as  it  existed  in  1887.'^ 

The  representatives  of  the  three  powers  met  in  Berlin  April  29, 
1889.  At  the  first  conference  Count  Bismarck  stated  that  Malie- 
toa,  having  "'expressed  his  regret  and  the  earnest  wish  to  be  recon- 
ciled with  the  German  Government,'"  had  been  released  and  was  at 
liberty  to  go  wherever  he  pleased.  This  statement  was  received  with 
expressions  of  satisfaction  by  the  American  and  British  delegations. 
At  the  ninth  and  last  formal  conference,  June  14.  1889,  there  was 
signed  what  was  described  as  the  "General  Act  of  the  Conference  at 
Berlin."'^'  The  discussions  in  the  conferences  were  conducted,  and  the 
j)rotoc()ls  drawn  up.  in  the  English  language.''  The  principal  features 
of  the  government  planned  ])y  this  treaty  were  a  supreme  court,  to 
consist  of  one  judge,  styled  chief  justice  of  Samoa,  who  was  to  be 
appointed  ))v  the  three  treaty  powers,  or.  if  they  could  not  agree,  b}- 
the  King  of  Sweden  and  Norway;  a  nuniicipal  goveriuncnt  for  the  dis- 
ti'ict  of  Apia,  b}'  a  council  whose  president  was  to  be  agreed  upon  })y 
the  powers;   a  special  commission   for  the  permanent  settlement  of 

^'Confidential  Exeoutive  E.,  .oO  Cong.  2  sess.  <-' For.  Eel.  1889,  '6o'6. 

'J  For.  Kel.  188'J,  195,  198,  2U1.  ('M.  367-308. 


548  sovereignty:  its  acquisition  and  loss.         [§110. 

claims  and  titles  to  lands,  and  a  system  of  revenue  consisting  of  import 

and  export  duties,  capitation  and  license  taxes,  and  certain  occasional 

duties." 

The  Samoan  Government  gave  its  formal  adherence  to  the  treaty, 

and  it  was  put  into  operation.     Difficulties  were,  how- 
Difficulties  in  ad-  ,        j    •      ^i  i     •    •  ^     j-  ■•    .1 

.  .  ,    ,.  ever,  encountered  in  the  admmistration  of   the  new 

ministration. 

government.  A  part  of  the  natives,  under  the  lead  of 
Mataafa,  opposed  the  new  government  and  disregarded  its  processes 
till,  in  July.  1893,  civil  war  again  broke  out.  The  treaty  powers  then 
intervened  with  their  naval  forces  to  maintain  Malietoa,  who  had 
returned  to  the  islands  and  been  reelected  as  King.  Difficulties  were 
also  encountered  in  separating  the  jurisdiction  of  the  supreme  court  and 
of  the  municipal  council  of  Apia.  The  native  hostilities  were  after  a 
time  suppressed,  and  Mataafa  and  eleven  other  chiefs  deported.  But 
hostilities  broke  out  again  in  March,  1894,  the  rebels  being  this  time 
under  the  lead  of  Tamasese.  Under  such  conditions,  the  revenues  of 
the  islands  proved  to  be  insufficient  to  meet  the  expenses  of  govern- 
ment, and  the  treaty  powers  were  obliged  to  make  the  necessary 
advances.-' 

'*ln  my  last  annual  message  I  referred  briefly  to  the  unsatisfactory 
state  of  aflairs  in  Samoa  under  the  operation  of  the  Berlin  treat}',  as 
signally  illustrating  the  impolicy  of  entangling  alliances  with  foreign 
powers,  and  on  Ma}'  9,  1S94,  in  response  to  a  resolution  of  the  Senate, 
I  sent  a  special  message  and  documents  to  that  body  on  the  same  sub- 
ject, which  emphasized  my  previously  expressed  opinions.  Later 
occurrences,  the  correspondence  in  regard  to  which  will  be  laid  before 
Congress,  further  denionstrate  that  the  Government  which  was  devised 
b}'  the  three  powers  and  forced  upon  the  Samoans  against  their  invet- 
erate hostility  can  be  maintained  only  l)v  the  continued  presence  of 
foreign  military  force  and  at  no  small  sacrifice  of  life  and  treasure.  .  .   . 

"The  present  Government  has  utterly  failed  to  correct,  if  indeed  it 
has  not  aggravated,  the  very  evils  it  was  intended  to  prevent.     It  has 


« President  Harrison,  in  his  annual  message  of  Dec.  3,  1889,  expressed  the  hope 
that  the  treaty  would  result  in  "the  permanent  establishment  of  law  and  order  in 
Samoa  upon  tlie  basis  of  the  maintenance  of  the  rights  and  interests  of  the  natives  as 
well  as  of  the  treaty  powers." 

"An  appalling  calamity  befell  three  of  our  naval  vessels  on  duty  at  the  Samoan 
Islands,  in  the  harbor  of  Apia,  in  March  last,  involving  the  loss  of  four  officers  ami 
forty-seven  seamen,  of  two  vessels,  the  Treiifon  and  the  Vandalia,  and  the  disabling 
of  a  third,  the  Xipsic.  Three  vessels  of  the  German  navy,  also  in  the  harbor,  shared 
with  our  .-^hips  the  furceof  the  hurricane  and  suffered  even  more  heavily.  While 
mourning  tlie  l)rave  officers  and  men  who  died,  facing  with  high  resolve  perils 
greater  than  tho.'^eof  l)attle,  it  is  most  gratifying  to  state  that  the  credit  of  the  Ameri- 
can Navy  for  seamanship,  courage,  and  generosity  was  magnificently  .sustained  in  the 
.storm-beaten  harbor  f)f  Apia."     (President  Harrison,  Aim.  Msg.,  Dec.  3,  1889.) 

''For.  Rel.  1894,  App.  I.  511-513;  S.  Ex.  Doc.  93,  53  Cong.  2  sp.«s. ;  S.  Ex.  Doc.  132, 
.5:')  Cong.  2  sess. ;  S.  Ex.  Doc.  97,  53  Cong.  3  sess.  As  to  the  payment  of  the  expenses 
of  the  l)anished  chiefs,  .see  For.  Rel.  1896,  533,  534. 


§  110.]  SAMOAN    ISLANDS.  549 

not  stimulated  our  commerce  with  the  islands.  Our  participation  in 
its  establishment  against  the  wishes  of  the  natives  was  in  plain  detiance 
of  the  conservative  teachings  and  warnings  of  the  wise  and  patriotic 
men  who  laid  the  foundations  of  our  free  institutions,  and  I  invite  an 
expression  of  the  judgment  of  Congress  on  the  propriety  of  steps 
l)eing  taken  by  this  Government  looking  to  the  withdrawal  from  its 
engagements  with  the  other  powers  on  some  reasonable  terms  not 
prejudicial  to  any  of  our  existing  rights." 

President  Cleveland,  Ann.  M.sg.,  Dec.  3, 1894. 

The  message  of  May  9,  1894,  above  referred  to,  was  accompanied  with  a  report 
of  Mr.  Gresham,  Secretary  of  State,  of  the  same  date,  presenting  a  com- 
prehensive survey  of  the  relations  of  the  United  States  and  Samoa.  Such 
a  survey  Mr.  Gresham  declared  to  be  specially  important,  "since  it  is  in 
our  relations  to  Samoa  that  we  have  made  the  first  departure  from  our 
traditional  and  well-established  policy  of  avoiding  entangling  alliances 
with  foreign  powers  in  relation  to  objects  remote  from  this  hemisphere. 
Like  all  other  human  transactions,"  said  Mr.  ({resham,  "  the  wisdom  of 
that  departure  must  be  tested  by  its  fruits.  If  the  departure  was  justified, 
there  must  be  some  evidence  of  detriment  suffered  before  its  adoption,  or 
of  advantage  since  gained,  to  demonstrate  the  fact.  If  no  such  evidence 
can  be  found  we  are  confronted  with  the  serious  responsibility  of  having, 
without  sufficient  grounds,  imperiled  a  policy  which  is  not  only  coeval 
with  our  Government,  but  to  which  may,  in  great  measure,  be  ascribed 
the  peace,  the  prosperity,  and  the  moral  influence  of  the  United  States. 
p]very  nation,  and  especially  every  strong  nation,  must  sometimes  ])e  con- 
scious of  an  impulse  to  rush  into  difficulties  that  do  not  concern  it,  except 
in  a  highly  imaginary  way.  To  restrain  the  indulgence  of  such  a  propen- 
sity is  not  only  the  part  of  wi.sdom,  but  a  duty  we  owe  to  the  world  as  an 
example  of  the  strength,  the  moderation,  and  the  beneficence  of  popular 
government.  .  .  . 

"Soberly  surveying  the  history  of  our  relations  with  Samoa,  we  well  may 
inquire  what  we  have  gained  by  our  dei)arture  from  our  established  policy 
beyond  the  expenses,  the  responsibilities,  and  the  entanglements  that 
have  so  far  been  its  only  fruits.  One  of  the  greatest  difficulties  in  dealing 
with  matters  that  lie  at  a  distance  is  the  fact  that  the  imagination  is  no 
longer  restrained  by  the  contemplation  of  objects  in  their  real  proportions. 
Our  experience  in  the  case  of  Samoa  serves  to  show  that  for  our  usual 
exemption  from  the  consequences  of  this  infirmity,  we  are  indebted  to 
the  wise  policy  that  had  previously  preserved  us  from  such  engagements 
as  those  embodied  in  the  general  act  of  Berlin,  which,  besides  involving 
us  in  an  entangling  alliance,  lias  utterly  failed  to  correct,  if  indeed  it  has 
not  aggravated,  the  very  evils  which  it  was  designed  to  prevent."  (S.  Ex. 
Doc.  93,  53  Cong.  2  sess. ;  For.  Rel.  1894,  Ai)p.  I,  504,  513. ) 

In  his  annual  message  of  Dec.  2, 1895,  President  Cleveland  said:  "  I  again  press 
this  subject  upon  the  attention  of  the  Congress  and  ask  for  such  legislative 
action  or  expression  as  will  lead  the  way  to  our  relief  from  obligations 
both  irksome  and  unnatural." 

As  to  difficulties  affecting  the  nmnicipal  council  of  Apia,  see  For.  Rel.  1895, 
II.  1126,  1128;  For.  Rel.  1896,  535,  536,  543,  544,  548,  551-552;  For.  Rel. 
1897,449-451. 

As  to  questions  concerning  the  revenues,  see  For.  Rel.  1897,  454-456. 


nnn  SioVKRKKiNTY:    ITi^    ACQUISITION    AND    LOSS.  [§  H*^- 

As  to  the  iiii]>ortatit>n  of  arms  aii<l  ammunition,  see  For.  Rel.  1895,  II.  1130, 

11.S.S- 11 :;.').  1141-1159;   Fur.  Kel.  189(),  54«>,  549,  551. 
A  <iuesti<'n  as  to  the  jurisdiction  of   tiie  municipal  magistrate  of  Apia  over 

offences  of  men-of-war's  men  is  distaissed,  but  not  decided,  in  For.  Rel. 

1S9(),  .'>5-_>-5(tl. 

'•Tlio  Fnited  St;it(>s  .  .  .  iiocessarily  continues  to  exercise  all 
stipulated  rijrlits  and  duties  under  the  tripartite  general  act  of  Berlin 
durin<r  the  contuuiance  of  that  compact,  however  irksome  and  unnat- 
ural those  riofhts  and  duties  may  prove  to  l)e." 

Mr.  <  >lncy.  Sec.  (.1  State,  to  the  President,  Dec.  7,  1896,  For.  Rel.  1896,  p.  Ixxx. 

In  a  iioti-  to  P>aron  vou  Thielmann,  German  ambassador,  April  28,  1896,  Mr. 
( >lnev  said:  •'The  treaty  [of  Jtme  14,  1889]  is  unsatisfactory  to  the  United 
States,  and  is  one  which  its  interests  reijuire  to  be  essentially  modified  or 
altoiretheral)ro'rated."     (For.  Eel.  1896.  534-545.) 

Ill  April.  ls;»s.  the  three  consuls  at  Apia,  having  just  received  notice 

that  certain  rel)ellious  chiefs  had  I'aised  a  separate  flag 

at  Leulinuolga.  decided  to  submit  to  the  treat v  powers 
kingsnip.  .     '^  .  •     . 

the  question  of  the  return  of  the  exiled  chiefs  to 
Samoa,  as  a  measure  likely  to  strengthen  Malietoa's  government. 
Tile  suggestion  was  adopted." 

"  Malietoa  Laupepa.  King  of  Samoa,  died  on  Augu.st  22d  last. 
According  to  Artiel(>  I.  of  the  general  act  of  Berlin  'his  successor  shall 
he  (hdy  elected  according  to  tlie  laws  and  customs  of  Samoa.' 

"Arrangements  luning  heen  agreed  upon  between  the  signatories  of 
thi'  general  act  for  the  return  of  ^Nlataafa  and  the  other  exiled  Samoan 
<hiefs.  they  were  l)r()ught  from  Jahut  by  a  German  war  vessel  and 
landed  at  .Vpia  on  September  Isth  last. 

•"Whether  the  death  of  Malietoa  and  the  return  of  his  old-time 
rival  Mataafa  will  add  to  the  undesirable  complications  which  the 
execution  of  the  tripartite  general  act  has  heretofore  developed 
remains  t(»  be  seen.  The  etforts  of  this  Government  will,  as  hereto- 
fore, be  addressed  toward  a  harmonious  and  exact  fulfillment  of  the 
terms  of  the  international  engagement  to  which  the  United  States 
became  a  paity  in  IssH." 

President  M.-KiiiUy.  Ann.  Ms<r.,  l>ec.  5,  lst)8. 

The  content  o\ci'  the  kingsliip  gave  rise  to  native  hostilities,  and 
these  le(l  to  the  t'oicibjc  inter\'ention  of  the  foreign  naval  forces.  In 
March.  1M»'.«.  Lord  Salisbury  })roposed  that  the  treaty  powers  should, 
witli  a  view  to  rotore  tran<iuillity.  a])p()int  a  joint  commission  to  under- 
take the  provisional  goveriunent  of  the  islands.''     This  propo.sal  was 

■'For.  Pel.   l.v.tH.  (Hl4-til(). 

'For.  Pel.  Is9t;.  (;14-<)16.  P.y  a  convention  Ix-tween  the  United  States,  Germany, 
and  (.reut  Pritain,  sitrned  at  Washinirton,  Nov.  7,  ls(»9.  all  claims  of  the  citizens  or 
Mil.jects  of  the  rnntnir-tin-r  parties  "for  compensation  onacconnt  of  los.<es  which  they 
allege  that  they  have  suffered  in  cousecjueiice  of  unwarranted  military  action,  if  this 


§  110.]  SAMOAN    ISLANDS.  551 

accepted;  hut,  })etore  the  arrival  of  the  Commission,  the  Chief  Justice, 

Mr.  Chambers,  had  decided  that  Malietoa  Taiui  had  been  elected  King, 

and  the  adherents  of  Mataafa  had  endeavored  to  contest  his  rights  bj' 

force.     The  foreign  residents  were  divided  in  sympath}'  between  the 

factions,  and  their  feelings  of  antagonism  extended  even  into  private 

life." 

The  commission  of   the  treaty  powers  was    composed  of    Messrs. 

Bartlett  Tripp,  for  the  L^nited  States;  H.  Sternburg, 

ommi  sio  0   ^.^^_  (iormanv.  and  C.  N.  E,  P^liot,  for  Great  Britain. 
Treaty  Powers.  ,  ,  .  "  ,  .  .  ,     . 

Mr.  Tripp  was  elected  by  his  associates  as  chairman. 

One  of  the  first  acts  of  the  commission  was  to  secure  the  assent  of  the 
natives  to  the  suspension  of  the  kingship,  the  duties  of  the  office  being 
provisionally  contided  to  the  three  consuls.  The  final  report  of  the 
commissioners  l)ears  date  fhily  18,  18*.M>.  They  found  that  the  princi- 
pal sources  of  disord(>r  in  the  group  were  (1)  the  kingship,  (2)  the  rival- 
ries of  foreign  nationalities.  (3)  the  absence  of  regular  government 
outside  the  municipality  of  Apia,  and  (4)  the  distribution  of  large 
quantities  of  arms  among  the  natives  in  consequence  of  the  insufficient 
enforcement  of  the  customs  regulations.  They  recommended  that  the 
office  of  King  be  permanently  abolished.'^ 

Mr.  Tripp  also  made  an  individual  final  report,  dated  August  7. 1899. 
In  it  he  said:  "We  arrived  in  Apia  on  the  13th  of 
epor  0  r.  npp.  ^j^^,^  1899.  making  the  seventh  of  the  fleet  of  war  ves- 
sels of  the  three  great  powers  then  anchored  in  that  quiet  little  har- 
bor— three  English,  three  American,  and  one  German  .  .  .  ,  but  not 
the  sail  or  smoke  of  a  single  vessel  of  commerce  was  to  be  seen  there 
or  about  the  coasts  of  these  beautiful  islands.  On  land  patrolling  the 
streets  and  at  every  crossing  were  soldiers,  white  and  native,  demand- 
ing the  password  of  resident  and  stranger.  A  thousand  natives  in 
native  uniform.  l)ut  armed  with  British  rifles  and  commanded  by  Brit- 
ish officers,  paraded  past  us  in  response  to  the  salutes  from  vessels  of 
war,  while  as  many  more  natives,  armed  with  everj-  species  of  warlike 
implement,  in  command  of  native  officers,  came  from  their  camps  to 

be  shown  to  have  occurred,  on  the  part  of  American,  (Ternian,  or  British  (jfiicers 
between  the  first  of  January  last  and  the  arrival  of  the  .hnnt  Commission  in  Samoa," 
were  referred  to  His  Majesty  tlie  King  of  Sweden  and  Xorway,  as  arbitrator,  to  be 
decided  "in  conformity  with  the  principles  of  international  law  or  considerations  of 
equity,"  the  three  (Jovernments  agreeing  jointly  or  severally  to  make  good  such 
Icisses,  according  to  the  award.  The  benefits  of  the  convention  were  also  extended, 
conditionally,  to  such  persons,  not  natives  of  Samoa,  as  were  under  the  protection  of 
any  of  the  three  Governments  but  not  included  in  the  foregoing  categories.  It  was 
subsetiuently  agreed  to  refer  to  tlie  arbitrator  certain  claims  of  French  citizens.  ( Mr. 
Hill,  Acting  Sec.  <.f  State,  to  the  Swedish  Leg.,  Sept.  27,  1900,  :MS.  Notes  to  Swedish 
Leg.,  VIII.  I61t;  Mr.  Hay,  Sec.  of  State,  to  Count  Quadt,  Oct.  22,  1900,  MS.  Notes 
to  German  Leg..  XII.  607;  For.  Rel.  1900,  47:^-476,  522-o2o,  <525-<)29,  89H. ) 

«For.  Kel.  1S99,  6U). 

i-For.  Rel.  1H99,  tWfMUS.     See,  also,  Pari.  Pap.,  Samoa,  No.  1  (1899). 


552  sovkkkujnty:  its  acquisition  and  loss.  [§110. 

^vitIlt'»  our  ai  riviil.  At  a  distance  from  tlio  town  of  perhaps  three 
niiK'>  and  t'liciiclini:'  it  on  all  sides  were  the  native  troops  of  Mataiifa, 
e>tiinati'd  at  ahoiit  H.ooo  men.  armed  with  riHes,  head  knives,  spears, 
and  sui-h  weapons  of  war  as  the  natives  could  command,  restino^  in)on 
theii"  arms  behind  their  lines  of  imi^rovised  fortifications  under  the 
terms  of  the  armistice  which  had  i)e(Mi  proclaimed  })v  the  vessels  of 
war  iKMidini,''  the  arri\  al  of  the  commission.  lUit  a  few  days  prior  the 
Entrlish  and  Ameiican  shijjs  had  shelled  the  town,  and  the  people  had 
left  the  rear  and  exposed  ))ortions  and  were  huddled  tojifether  in  the 
houses  alon*:-  the  heach  and  out  of  the  way  of  and  protected  by  the 
<ruMs  of  the  ships  which  liad  h(M^n  directed  against  the  forts  and  lines 
of  Mataafa  suriounding  the  place.  Excitement  and  alarm  prevailed 
everywhei-(>  and  this  condition  of  nervous  excitement  had  reached  its 
heiglit  when  the  commission  ariived."'" 

Mr.  Ti'ipp  said  that  he  was  informed  by  Chief  Justice  Cham])ers 
that  during  Ids  entirt^  stay  in  Samoa  the  writs  of  his  court  running  in 
the  name  of  Malietoa  Laupepa  as  king  could  not  l)e  enforced  even  in 
times  of  apparent  ])eace  in  several  large  districts  of  Samoa.  No  king 
ever  was  able  to  maintain  his  authority  o^'er  all  the  districts  at  the 
same  time,  and  some  of  the  more  i)owerful  chiefs  were  continually  in 
rebellion.'' 

In  anotlier  j)lace  Mr.  Tripj)  said:  "While  T  have  no  doubt  that  any 
one  of  the  great  powers  could  easily  govern  these  islands  in  the  man- 
ner i)ro|)os(Hi.  I  feai'  their  ability  to  do  so  when  acting  together,  and  I 
can  not  forbear  to  impi'ess  u})on  my  (xovernment  not  only  the  pro- 
priety but  the  ne«-essity  of  dissolving  this  partnership  of  nations  which 
has  no  preccHlent  for  its  creation  nor  reason  for  its  continuance."'' 

In  another  place  Mr.  Tripp,  rt^ferring  to  Pagopago,  said:  "I  can 
not  imi)ress  upon  my  (lOvermutMit  too  strongly  the  necessity  of  its 
undi\  ided  possession  of  this  harbor.  It  is  the  oidy  one  worthy  of  the 
name  in  the  islands."'' 

Septeml)er  T.  ls'.t!».  ]\li-.  Hay  telegraphed  to  Mr.  Choate.  American 

Division  of  the  ambassador  in  London,  that  the  (lerman  Government 
group.  >trongly  urged   the  pai'tition  of  the  Samoan  Islands, 

the  Tnited  State<  to  i-etain  Tutuila  and  adjacent  islands,  and  England 
and  (Jei-many  to  divide  the  i-e>t;  and  that  the  President  was  disposed 
to  regai-d  the  piopo^ition  with  favor  if  the  d(>tails  could  ■l)e  satisfac- 
toiily  anange(l.  Mi-.  Choate  was  instruct(Kl  to  ascertain  the  views  of 
the  l)riti>h  (ioveiiinient.' 

liy  a  convention  concluded  Xoveml)er  14.  ISD'.t.  ])etween  Germany 
and  (ireat  Hritain.tlie  latter  renounced  all  her  rights  over  the  Samoan 
I-land-.  and   recognized  as  falling  to  ( Jermany  the  territories  in  the 

I'mf.  1;.-1.  I  vm,  t;4s-*;4<»;  S.  Doc.  r>l.  r>(l  ( '..n*:.  I  sess.         ''For.  Rel.  1S99,  m2. 
'  I'"-  l;-!    l"^'''*-  ••-■''-».  'For.  Rel.  1899,  6ti:3. 

I'. .r.  U.I.  Islt'.i   (;5y. 


§  110.]  SAMOAN    ISLANDS.  553 

eastern  part  of  the  neutral  zone  established  ])v  the  arrangement  of 
1888  in  West  Africa.  Germany,  on  the  other  hand,  renounced  in 
favor  of  Great  Britain  all  her  rights  over  the  Tonga  Islands,  including 
Vivau,  and  over  Savage  Island,  and  recognized  as  falling  to  Great 
Britain  certain  of  the  Solomon  Islands  (including  the  Howe  Islands), 
and  the  western  part  of  the  neutral  zone  in  West  Africa.  The  declara- 
tion between  the  two  Governments  of  April  10,  1886,  respecting  free- 
dom of  commerce  in  the  western  Pacific,  was  declared  to  apply  to  the 
islands  mentioned  in  the  convention.  It  was  also  agreed  that  (xermanv 
should  consider  the  question  of  reciprocal  tariffs  in  the  territories  of 
Togo  and  the  Gold  Coast,  and  give  up  her  extraterritorial  rights  in 
Zanzibar  whenever  the  similar  rights  enjoyed  there  by  other  nations 
should  be  abolished." 

By  a  treaty  between  the  United  States,  Germany,  and  Great  Britain, 
concluded  December  2,  18;>9,  both  the  latter  powers  renounced  in  favor 
of  the  United  States  all  their  rights  over  the  island  of  Tutuila,  and  all 
other  islands  of  tiie  group  east  of  longitude  171-^  west  of  Greenwich, 
while  the  United  States  renounced  in  favor  of  Germany  all  rights  over 
the  islands  of  Upolu  and  Savaii  and  all  other  islands  of  the  group  west 
of  longitude  IJl -^  west  of  Greenwich.  It  was  further  agreed  that  each 
of  the  three  powers  should  "continue  to  enjo}'.  in  respect  of  their  com- 
merce and  commercial  vessels,  in  all  the  islands  of  the  Samoan  group 
privileges  and  conditions  equal  to  those  enjoyed  In'  the  sovereign 
power,  in  all  ports  which  may  be  open  to  the  commerce  of  either 
of  them."  Finally,  the  general  act  of  Berlin  of  June  14,  1889,  and 
all  previous  treaties  and  agreements  relating  to  the  islands,  were 
annulled.^ 

By  this  arrangement  Tutuila.  containing  the  harbor  of  Pagopago, 
Tutuila    and    the  P'^'^'^'^tl,  with  the  adjacent  islands,  under  the  exclusive 

harbor  of  Pago-  jurisdiction  of  the  United  States.     Their  administra- 

Pago.  tion  was  placed  under  the  direction  of  the  Secretary 

of  the  Navv.  acting  through  the  conmiandant  of  the  United  States 
naval  station  at  Pagopago.' 

Under  the  general  act  of  Berlin  a  work  of  permanent   value  was 

accomplished  in  the  adjustment  of  claims  to  land  bv 
Titles  to  land.  j-       •    ■    i.  ••,/■»!  j?      ^i 

means  of  a  joint  commission."  Measures  for  the  pres- 
ervation of  the  records  of  the  commission  were  taken  ])y  the  three 
(xovernments.'' 


"  For.  Rel.  l.S9it,  665-666. 

'^  Fur.  Rel.  1S99,  667.     See,  also,  President  McKinley'n  annual  nies.«age,  Dec.  5,  1899. 

'Mr.  Hay,  Sec.  of  State,  to  Sec.  of  Treasury,  Dec.  6,  1900,  249  MS.  Duni.  Let.  .393; 
Mr.  Hill,  Acting  Sec.  of  State,  to  Sec.  of  Treasury,  Jan.  8,  1901,  2.30  MS.  Dom.  Let. 
131;  and  2.")  Op.  At. -Gen.,  630,  holding  Tutuila  to  be  domestic  territory. 

('For.  Rel.  1894,  App.  L  697,698,701,704,706,709-710,714,727,740,743,746,747, 
750,7,53;  For.  Rel.  1895,  II.  1128,1129,1144-1146,1149,1150,1152,1155,1159. 

«For.  Rel.  1896,  531,538,545;  For.  Rel.  1897,  448. 


')')4  SOVKRKIGNTY:    its    ACQt^ISITION    AND    LOSS.  [§  HI. 

Tlic  report  of  tlio  Anioric-an  coinniissionor,  Mr.  Chamber.s,  on  the 
results  of  tlie  lai\(l  fomniission.  is  printod  in  S.  Ex.  Doe.  1>7,  53d  Cong. 
;!(!  scss.  4«!.")  47(».  It  atiords  a  view  of  the  basis  on  whieh  the  division 
of  the  group  was  afterwards  made.  The  elaini.s  before  the  land  com- 
mission, ill  the  whole  group.  numt)ered  ;'>.1>4"2.  of  which  1,422  were 
Cn'rman.  1.7.")T  Knglish.  ;io7  American.  32r»  French,  and  180  mis- 
cellaneous. The  total  acreage  allowed  was  185.000,  of  which  two- 
thirds  belonged  to  (lermtms.  who.  as  Mr.  Chamber.s  reported,  were 
"tlie  onlv  foreign  residents  in  Samoa  who  have,  on  any  system, 
cleared,  planted,  and  otherwise  improved  their  holdings.''  The  claims 
allowed  to  Americans  amounted  to  21,000  acres,  the  most  of  which 
belonged  to  a  San  Francisco  corporation,  which  was  insolvent  and 
whieh  had  no  agent  in  the  group;  and  its  lands  were  understood  to  be 
for  sale.  M  r.  Chambers  also  stated  that  there  were  only  nineteen  bona 
tide  American  citizens  resident  in  the  islands,  exclusive  of  oiiicials, 
and  that  the  connuerce  of  the  group  was  chieHy  in  German  hands. 
The  actual  state  of  conunercial  and  landed  interests,  and  also  of  nation- 
alitv  among  the  foreign  residents,  was  therefore  recognized  in  the 
allotment  of  Cpolu  and  Savaii  to  (ferman}',  tho.se  islands,  and 
especially  Fpolu,  being  the  principal  seats  of  commerce  and  planting: 
while,  on  the  other  hand,  in  the  concession  of  undivided  jurisdiction 
to  the  United  States  over  Tutuila  and  the  adjacent  islands,  the  exclu 
sive  rights  of  the  United  States  in  the  harbor  of  Pagopago  were 
placed  ])eyon<l  dispute. 

President  McKinley.  in  his  annual  message  of  December  3,  1900, 
stated  that  the  "settlement  of  the  Samoan  problem,-'  under  the  treaty 
of  Decem])er  2.  IS'.IH,  had  "•  accomplished  good  results."  and  that  "peace 
and  contentment"  prevailed  in  the  islands, 

\'2.   lliiKsKsniiK  1\ekk:  I'hooks  ok  Midway  Islands;  Wake   Lsland. 

S  ill. 

Ill  a  eonfereiue  at  the  foreign  office,  in  London,  Dee.  9,  1850, 
Mr.  Abbott  Ijawrence.  minister  of  the  United  States, 
referring  to  the  need  of  a  lighthouse  near  the  outlet 
of  Lake  Krie.  stated  that  it  was  found  that  the  most  eligible  site 
was  •■  Horseshoe  Reef."  within  British  jurisdiction,  and  that  he  was 
instiucted  to  ask  whethiM*  the  British  (lovernment  would  '"cede  to  the 
United  .State.»  the  Horseshoe  Keef.  or  such  part  thereof,  as  may  i)e 
necessary  for  the  purpose^  of  erecting  a  lighthou.se,''  and,  if  not, 
wlieth(M-  the  British  (To\(M-iimeiit  would  its(df  erect  and  maintain  a 
lighthouse  there. 

Lord  Palmer>ton  replied  that  his  (rovernment  was  prepared  to  advise 
Hit  Majesty  to  cede  "such  portion  of  the  Horseshoe  Reef  as  mav  be 
found  reijuisite  for  the  inteiuhul  lighthouse,  provided  the  Government 


§  ni.]    HORSESHOE   REEF;    MIDWAY    ISLANDS;    WAKE   ISLAND.     555 

of  the  United  States  will  engage  to  erect  such  lighthouse,  and  to  main- 
tain a  light  therein;  and  provided  no  fortification  be  erected  on  the 
said  reef.*" 

It  was  accordingly^  agreed  that  the  Crown  should  make  the  cession 
on  the  conditions  named.     The  lighthouse  was  erected  in  1850. 

United  States  Treaty  Volume,  1776-1887,  p.  444.  In  1884  the  Canadian  Gov- 
ernment granted  the  United  States  Lighthouse  Board  jiermissiou  to  build 
a  crib  for  a  lighthouse  near  Bar  Point,  at  the  mouth  of  the  Detroit  Kiver. 
(Mr.  Frelinghuysen,  See.  of  State,  to  Sir  L.  West,  Brit,  niin.,  March  20, 
1884,  MS.  Notes  to  Great  Britain,  XIX.  480.) 

Brooks  or  Midway  Islands,  situated  about  1,100  miles  west  of  Hon- 
olulu, and  within  the  limits  assigned  bv  the  maps  to 

Brooks,  or  Midway,   j.itt  ••  j;  n  •ii/ij. 

the  Hawaiian  group,  were  formally  occupied  In'  C  apt. 

William  Reynolds,  of  the  U.  8.  S.  Lachmxtniuu  Aug. 
28,  1867.  An  account  of  their  discovery  and  occupation  is  given  in 
S.  Ex.  Doc.  79,  40  Cong.  2  sess.,  and  Sen.  Rep.  194,  40  Cong.  3  sess.; 
and  further  information  in  regard  to  them  may  be  found  in  a  message 
of  President  Cleveland  to  the  Senate  of  Jan.  27,  1888,  which  was  sent  in 
response  to  a  resolution  of  that  ])ody  calling  for  correspondence  touch- 
ing the  occupancy  of  Midwav  harbor  in  Midwaj'  Island,  but  does  not 
appear  to  have  been  printed  as  an  executive  document. 

:Mr.  Moore,  Acting  Sec.  of  State,  to  Mr.  Cousins,  :N[.  C.,  July  11,  1898,  230  MS. 
Dom.  Let.  153. 

See,  also,  Mr.  Adee,  2nd  Assist.  Sec.  of  State,  to  ^Ir.  Lodge,  Jan.  11,  1898,  224 
MS.  Dom.  Let.  350.  Besides  the  Philippines,  Hawaii,  the  Ala.«kan  and 
Pacific  Coast  Islands,  Guam,  Tutuila  and  other  Sanioan  Islands  east  of 
long.  171°  W.  of  (jreenwich,  and  the  various  Guano  Islands,  the  United 
States  claims  jurisdiction  over  "Brooks  or  ^lidway  Islands  lying  1,100 
miles  west  of  Honolulu,  .  .  .  and  Wake  Island."  (Mr.  Hill,  Acting 
Sec.  of  State,  to  Messrs.  Perry,  Mason  k  Co.,  April  18,  1900,  244  :MS.  Dom. 
Let.  381.) 

The  settlement  of  a  colony  of  six  Japanese  on  the  Midway  Islands  "cannot 
be  regarded  by  this  Government  as  affording  any  basis  for  a  claim  to  the 
islands  by  the  Japanese  Government."  (Mr.  Hill,  Acting  Sec.  of  State,  to 
the  Sec.  of  the  Navy,  Jan.  10,  1901,  250  MS.  Dom.  Let.  162,  enclosing  copy 
of  a  dispatch  from  the  United  States  minister  at  Tokio  of  Dec.  13,  1900, 
stating  that  he  had  addressed  a  note  to  the  Japanese  min.  of  foreign 
affairs,  saying  that  the  islands  belonged  to  the  United  States.) 

•"The   United  States  claims  jurisdiction      .     .     .     over  tiie  atoll, 
known  as  Wake's  Island,  latitude   19^  17'  .")(>"  north, 
longitude  160^  31'  east,  possession  of  which  was  taken 
by  the  T.  S.  S.  BcKnuiyton  on  January  17,  1899.'' 

Mr.  Hill,  As.<ist.  Sec.  of  State,  to  ]Mr.  Page,  Feb.  27,  19(X),  243  >rS.  Dom.  Let. 

24(). 
After  the  passage  above  quotetl  there  is  the  following  paragraph:  "There  are 

several  small  islands  south  and  west  of  the  Hawaiian  group  said  to  l)e 


550  SOVKKKIONTV:    1T>1    A(XilTISITION    AND    LOSS.  [§112. 

occupioii  l)y  Anu'ricaii  citizens,  hut  tiic  rnited  States  Government  has 
iH'Vrr  asserted  ri<riits  of  jurisdiction  or  administration  over  siu-h  islands 
liy  reason  o|  tlu-ir  occui>aney." 
To  iliet^anie  effect  is  Mr.  Day,  Sec.  of  State,  to  Mr.  Cousins,  July  18,  1898, 
•2A0  MS.  Doni.  Let.  I'hi. 

lo.     (ii'ANo   Islands. 

(1)     I.K(iISI,AriON    OF    t()N(JRE.SS. 

S  11-2. 

Sections  55T0-5.MS  of  th«^  Roviscd  Statutes,  embodving  the  provi- 
sions of  tlie  Act  of  Contrross  of  August  18,  1856,"  contain  special  rules 
on  the  siil»j(H-t  of  (lUiino  Islands. 

Section  .^alo  pi'ovides:  •'Whenever  any  citizen  of  the  United  States 
discoN'cis  a  deposit  of  oiiuiu)  on  any  island,  rock,  or  key,  not  within 
th(^  lawful  jurisdiction  of  tiny  other  (Tovernment,  and  not  occupied  by 
the  citizens  of  any  other  (xovernnient,  and  takes  peaceable  possession 
thereof,  and  oci'upies  the  same,  such  island,  rock,  or  key  may,  at  the 
discretion  of  the  President,  be  considered  as  appertaining  to  the  United 
States." 

Section  r).")7L  reads:  '•llie  discoverer  shall,  as  soon  as  practicable, 
gi\  (•  notice,  veritied  by  atHdavit,  to  the  Department  of  State  of  such 
disco\  <M-v.  occu[)ation.  and  possession,  describing  tiie  island,  rock,  or 
key.  anil  tlie  latitude  and  lonoitude  thereof,  as  near  as  may  be,  and 
sliowino-  that  sucii  possession  was  taken  in  the  name  of  the  United 
States;  and  shiill  furnish  satisfactor}'  evideiu-e  to  the  State  Depart- 
ment that  sucli  island,  ro(d\,  or  key  was  not,  at  the  time  of  discovery 
thereof,  or  of  tlie  taking  possession  and  occupation  thereof  by  the 
claimants,  in  the  possession  or  occui)ation  of  any  other  Government, 
or  (d'  the  citizens  of  any  other  Govermnent,  before  the  same  shall  be 
con>i(h'i-ed  as  ai)iH!rtaining  to  the  United  States." 

Section  ooTl'  enables  the  widow,  heir,  executor,  or  administrator  of 
a  disco\ crei'.  who  dies  b«d'ore  perfecting  proof  of  discovery  or  fidly 
complying  with  the  pivnisions  of  the  statute,  to  obtjiin  the  benefits  of 
the  discovery. 

By  section  55To,  "the  discoverer,  or  his  assigns,  being  citizens  of 
the  Unit<Hl  States,  may  he  allowed,  at  the  pleasure  of  Congress,  the 
exclusive  right  (^f  occupying  such  islands,  rocks,  or  keys,  for  the  pur- 
pose of  (dttaining  guano,  and  of  selling  and  delivering  the  same  to 
citizens  of  the  United  States,  to  )>e  used  therein,  and  may  be  allowed 
to  charge  and  receive  for  every  ton  thereof  delivered  alongside  a 
ves>e|.  in  proper  tul)s.  within  reach  of  ship's  tackle,  a  sum  not  exceed- 
ing J5S  pel-  ton  for  the  best  (piality.  or  SI-  for  every  ton  taken  while  in 
its  nati\e  place  of  deposit." 


■  As  to  tlir  i.ri-iii  nf  tlii<  act.  see  papers  and  statements  by  Mr.  Henry  S.  Sanford, 
S.  Kx.  Dor.  •_'.-),  :;4  ('..ng.  ;',  sess.  ;i").  <):!;  S.  K\.  I),,c.  U),  36  Cong.  2  sess.  465-466. 


§  112.]  GUANO    ISLANDS.  557 

B}'  section  .5574,  the  di.scoverer.  hi.s  personal  representative,  or 
assignee,  must  give  bond,  in  such  penalty  and  with  such  sureties  as 
the  President  nui}'  require,  to  deliver  the  guano  to  citizens  of  the 
United  States  only,  and  for  use  therein,  at  the  price  prescribed,  and 
to  provide  all  necessary  facilities  for  that  purpose  within  a  fixed  time. 
This  section,  however,  was  suspended  for  tive  years  from  and  after 
July  14,  1872." 

B}'  section  5575.  the  introduction  of  guano  under  the  statute,  and  the 
vessels  concerned  therein,  are  subject  to  the  laws  regulating  the  coast- 
ing trade. 

'*Sec.  5576.  All  acts  done  and  offenses  or  crimes  committed  on  any 
such  island,  rock,  or  key  by  persons  who  may  land  thereon,  or  in  the 
waters  adjacent  thereto,  shall  ))e  deemed  committed  on  the  high  seas, 
on  board  a  merchant  ship  or  vessel  belonging  to  the  United  States,  and 
shall  be  ])unished  according  to  the  laws  of  the  United  States  relating 
to  such  ships  or  vessels  and  offenses  on  the  high  seas,  which  laws,  for 
the  purpose  aforesaid,  are  extended  over  such  islands,  rocks,  and  keys. 

''Sec.  5577.  The  President  is  authorized,  at  his  discretion,  to  eniploy 
the  land  and  naval  forces  of  the  United  States  to  protect  the  rights  of 
the  discoverer  or  of  his  widow,  heir,  executor,  administrator,  or  assigns. 

""Sec.  5578.  Nothing  in  this  title  contained  shall  be  construed  as 
obliging  the  United  States  to  retain  possession  of  the  islands,  rocks,  or 
keys  after  the  guano  shall  have  been  removed  from  the  same." 

The  act  of  August  18,  1856.  reenacted  in  title  71  of  the  Revised  Stat- 
utes, is  constitutional  and  valid. 

Jones  '•.  t'liited  States  ( 1890),  137  U.  S.  202.  In  connection  with  guano  legis- 
lation, .see  reports  of  the  Secretary  of  State,  .June  29,  1850,  S.  Ex.  Doc. 
59,  :M  Cong.  1  ses.<. ;  Sei)t.  27,  1850,  S.  Ex.  Doc.  80,  31  Cong.  1  ses-s.; 
March  1,  1854,  H.  Ex.  Doc.  70,  3;;  Cong.  1  se.«s.;  Jan.  24,  1855,  S.  Ex. 
Doc.  31,  33  Cong.  2  se.-^s. ;  Feb.  5,  1859,  S.  Ex.  Doc.  25,  35  Cong.  2  sess. 

Calvo,  Droit  Int.  (cinq.  ed. ),  I.  432,  §300. 

For  articles  on  guano,  see  De  Bow's  Rev.  XIX.  219;  Chamber's  Jour.  I.  l.'5o, 
383;  Living  Age,  XXXVI.  199. 

Section  6  of  the  guano  islands  act  of  August  18.  1856.  reenacted  in 
section  5576  of  the  Kcvised  Statutes  of  the  United  States,  does  not 
a.ssume  to  extend  admiralty  jurisdiction  over  land,  but  merely  extends 
the  provisions  of  the  statutes  for  the  punishment  of  offenses  committed 
on  the  high  seas  to  like  offenses  committed  upon  guuiio  islands  apper- 
taining to  the  United  States,  and  thus  asserts  the  power  of  the  United 

«See,  also,  act  of  March  3,  1865,  sec.  8,  13  Stats.  494:  act  of  July  28,  18»i6,  sec.  3,  14 
Stats.  328;  opinion  of  Sjieed,  At. -Gen.  ('1S()()),  11  Op.  514;  al.«)  acts  of  .March  15,1878, 
20  Stat.s.  30;  April  18,  1884,  23  Stat<.  II;  Jones  r.  United  States  (1890),  137  U.  S. 
202,  224. 


558  sovereignty:  its  acquisition  and  loss.  [§113. 

States  to  pivserve  poace  and  })uiiish  criiiie  in  all  regions  over  which  it 
exercises  jurisdiction. 

.T..ii,.H  /■.  Unitftl  States,  1.S7  V.  S.  202  (1890). 

It  was  thtTt'loi-e  liel«l  that  uiidcr  sections  730,  5339,  5.576,  R.  S.,  murder  com- 
iiiitted  on  a  Lniano  island  whiih  had  been  determined  by  the  President  to 
apjiertain  to  the  I'nited  States,  mijrht  ])e  tried  in  the  United  States  court 
for  the  district  into  which  the  offender  wa.«  tirst  l)rought. 

The  (jiu'stion  havintr  l)een  asked  hy  the  owner  of  the  right  to  work 
a  deposit  whether  his  manager  might  be  invested  with  power  to  pre- 
serve order  on  the  island  and  to  re(juire  proper  quarantine  regidations 
to  be  observed  hy  vessels  coming  from  infected  ports  to  load  for  the 
United  .States,  reply  was  made  that  if  the  legislation  of  Congress  was 
not  sutticient  for  the  purpose,  no  power  was  known  to  exist  in  the 
executive  department  of  the  (Tovernment  ''either  to  prescribe  addi- 
tional laws  or  to  empower  others  to  do  .so." 

Mr.  Bayard,  Sec.  of  State,  to  :Me.ssrs.  Glidden  i<:  Curtis,  Dec.  29,  188H,  162 
MS.  ])oni.  Let.  445.  referring  to  an  opinion  of  the  Attorney-General,  of 
Dec.  15, -io  that  effect. 

(2J  ("oxDiTioNs  OF  Annexation'. 
§  118. 

To  enable  the  President  to  exerci.se  the  power  conferred  on  him  ]>v 
the  act  of  Aug.  18,  IS;")*;.  the  following  facts  must  be  estobli.shed: 

••  1.  That  a  deposit  of  guano  has  been  di.scovered  upon  the  island  br 
an  American  citizen. 

'"2.  That  the  island  is  not  within  the  lawful  jurisdiction  of  any 
other  government. 

•■|'>.    I'hat  it  is  not  occupied  by  the  citizens  of  any  other  government. 

•"4.  That  the  discoverer  has  taken  and  kept  peaceable  possession 
thereof  in  the  name  of  the  I'nited  States. 

".5.  That  the  discoverer  has  given  notice  of  the  facts,  as  soon  as 
practii-able.  to  the  .State  Department,  on  his  oath. 

'Ml.  That  the  notice  has  l)een  accomi)anied  with  a  description  of  the 
island,  its  latitude  and  longitude. 

"7.  That  satisfactory  e\  idence  has  been  furnished  to  the  State 
Dei)artn)ent.  showing  that  the  ishind  was  not  taken  out  of  the  po.s.ses- 
.sion  of  any  other  government  or  people." 

Black,  At. -Gen.  i  ls.59;.  9  <>p.  364,  .367. 

These  conditions  were  jireviously  enumerate<l  by  Attorney-General  Black  in  a 

letter  to  the  Department  of  State  of  .Tune  2.  1857,  MS.  Misc.  Ix-t. 
See,  al.«o,   Mr.   Sewarrl,   Sec.  of  State,   t..  Mr.  Daggett.  .Sept.  4,  1867.  77  MS. 

Doni.  I>et.  (K);  to  Mr.   I'hillijis.   March  2.  I,s68.  78  id.  151;  to  Mr.  Clark, 

.Inly  1,  1S6S,  79  id.  43. 
Mr.  Fish.  Se<'.  of  State,  to  Mr.  SaiH.<on,  Aj.ril  12.  1870,  84  MS.  Dom.  I>et.  Ib'^; 

to  .Mr.  l-jinder.  May  20,   ls74.  102  MS.   D..m.   Let.  300;  to  Mr.   Preston, 

Haytian  .Mini.«ter,  Dec.  31,  1872,  and  June  10,  1873,  MS.  Notes  to  Hayti, 

I.  124,  1.53. 


§  113.]  GUANO    ISLANDS.  559 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Fisher,  July  7,  1880,  133  ^IS.  Dom.  Let.  509. 
Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  McC'ulloch,  Dec.  5,  1884,  153  MS. 

Dom.  Let.  3G6. 
See,  also,  :Mr.  Hay,  Sec.  of  State,  to  Mr.  Lunt,  May,  26,  1899,  237  MS.  Dom. 

Let.  265,  as  to  the  alleged  discovery  of  Fox  Islands. 

"When  the  President  ha.s  been  .satisfied  on  these  points,  lie  may, 
in  his  discretion,  regard  the  islands  containing  the  discovered  deposits 
as  belonging  to  the  United  States,  liut  he  is  not  obliged  to  do  so.  The 
object  of  the  law  is  to  benefit  American  agriculture  by  promoting  the 
supply  of  guano  at  a  reasonable  i)rice.  Before  assuming,  therefore, 
the  grave  responsibility  involved  in  declaring  a  guano  island  to 
belong  to  the  United  States,  he  must  l)e  satisfied  that  the  guano  found 
upon  it  is  in  sufficient  quantity  and  quality  to  justify  the  measure. 
And  it  is  only,  moreover,  when  he  shall  be  fully  informed  with 
respect  to  th(!  \alu<'  of  the  deposit  that  he  can  fix  correctly  the  penalty 
of  the  bond  re(|iured,  and  determine  the  securities  contemplated  by 
the  law.*' 

Mr.   Cass,  Sec.  of  State,  to  Messrs.   Wood  and  Grant,  July   1,   1857,  47  MS. 

Dom.  Let.  166. 
Of  the  same  purport  is  Mr.  Cass,  Sec.  of  State,  to  Me.ssrs.  Fabens  and  Stearns, 

June  29,  1857,  47  MS.  Dom.  Let.  157. 

The  President  can  not  annex  a  guano  island  to  the  United  States 
while  a  diplomatic  question  is  pending  between  this  Goveriunent  and 
that  of  a  foreign  nation,  growing  out  of  a  claim  of  dominion  b\'  the 
latter  over  the  island. 

Black,  At.-Gen.,  9  Op.  406  (1859). 

This  opinion  related  to  tlie  island  of  Cay  Verde. 

But  if  the  President,  in  the  exercise  of  his  powers  under  the  statute, 
treats  a  guano  island  as  appertaining  to  the  United  States,  this  neces- 
sarily implies  that  he  is  .satisfied  that  the  island  was  not  within  the 
jurisdiction  of  any  foreign  government;  and  in  such  case  it  is  not  the 
province  of  the  courts  to  determine  whether  the  Executive  was  right 
or  wrong,  but  they  must  act  upon  the  fact  as  decided  bv  him. 
Jones  V.  T'nited  States  (1890),  137  U.  S.  202,  221,  223. 

The  right  of  citizens  of  the  United  States  to  the  use  and  control, 
under  the  Revised  Statutes,  of  deposits  of  guano  on 

DiscovGrv  • 

islands,  rocks,  and  keys,  '"is  based  on  the  discovery 

not  of  the  island  or  other  place  named,  but  of  the  deposit  of  guano. 

But  it  must  also  be  shown  that  the  place  of  the  d(>posit  is  '  not  within  the 

lawful  jurisdiction  of  any  other  government '  (sec.  5570,  Rev.  Stats.); 

or,  as  it  is  again  and  more  specifically  expressed,  that  such  place  *  was 

not  at  the  time  of  the  discovery  thereof,  or  of  the  taking  po.ssession 

iind  occupation  thereof  by  the  claimants,  in  the  possession  or  occupation 


500  sovekeioxty:  its  acquisition  and  loss.         [§113. 

of  juiy  othor  L!;oviM"iiment  or  of  the  citizens  of  any  other  government. 
(Sec.  r^rul.  Kcv.  Stilts.) 

•*  If  it  l)t'  shown  that  the  phice  of  deposit  is  not  subject  to  the  juris- 
diction of  any  otlicr  government  tiie  determination  of  the  conflicting 
claims  of  citizens  of  the  Tnited  States  belongs  exclusively  to  this  Gov- 
ernment. .  .  .  And  it  is  conceived  that  a  disallowed  or  abandoned 
claim  would  not  l>e  a  bar  to  the  subsequent  acquirement  of  rights 
under  th(>  act  of  Congress  by  another  claimant." 

Mr.  Hayanl,  Sec.  of  State,  to  Mr.  Romero,  Mex.  minister,  Feb.  18,  1886,  MS 
Note.<  to  Mexico,  IX.  163. 

One  can  not  '*  lay  a  claim"  to  an  island  under  the  belief  that  it  con- 
tains giiano,  but  before  any  actual  discoveiT  of  guano  deposit,  posses- 
sion, or  occupation. 

Black,  At. -Gen.  (18.59),  9  Op.  864. 

To  the  question  whether  the  United  States  would  ""give  protection 
to  an  American  citizen  who  has  discovered  and  taken  possession  of  a 
guano  island  while  he  was  in  command  of  a  British  vessel,"  reply  was 
made  (1)  that  the  act  of  1856  required  the  person  claiming  the  pro- 
tection of  the  (lovernment  to  show,  among  other  things,  that  "posses- 
sion was  taken  in  the  name  of^the  United  States:"  (2)  that  '"the  dis- 
covery of  an  unoccup'ed  island  by  the  navigators  of  a  ship,  public  or 
private,  is  generally  imderstood  to  be  for  the  benetit  of  the  nation 
under  whose  flag  the  vessel  sails,  and  imder  whose  protection  the 
crew,  whatever  may  be  their  naticMial  origin,  have  for  the  time  chosen 
to  ])lace  themselves:"'  (:])  that,  "to  recognize  anv  other  ride  might 
introduce  great  uncertainty  in  the  consti'uction  of  an  act  which  ought 
to  admit  of  no  doubt."  It  was  added,  as  an  illustration  of  this  uncer- 
tainty, that  tile  captain,  in  the  case  put.  "might  desire  to  take  posses- 
sion in  behalf  of  the  United  States,  while  his  crew,  owing  allegiance 
to  (ireat  Britain,  might  well  refuse  to  suppoit  such  a  pretension  and 
leave  him  powerl(\ss  to  gi\e  any  efl'ect  to  his  claim." 

Mr.   Scwanl,   St-c.  ut  State,  to  Mes.^r:^.   Kittredge  &  Proctor,  May  9,  1866,  73 
MS.  D.iiii.  Let.  57. 

No  claim,  under  the  act  of  Congress,  can  have  any  earlier  inception 
than  the  actual  discovery  of  guano  deposit,  possession 
ccapa  ion.       t.^l.^^^>|,    -ind  actual  occupation  of  the  island,  rock,  or 
key  whereon  it  is  found. 

Black,  .\t.-(;en.  (lS.-,9),  9  Op.  .864. 

"An  actual  taking  of  possession  and  actual  occupation  of  the  i.sland 
whereon  guano  has  been  discovered  are  express  conditions  of  the  act 
of  Congress,  which  are  not  complied  with  by  a  mere  symbolical  posses- 


S  llo.)  GUANO    ISLANDS.  5(U 

sion   or  occupanc}',  as  by  the  planting-  of    a  flag,  the  erection  of  a 
tablet,  an  inscription,  or  other  like  acts.'" 

Black,  At.-Gen.  (1859),  9 Op.  S64,  367.      See  alsao  Mr.  Black.  Sec.  of  State,  tc 
:\Ir.  Marj^hall,  Dec.  28.  1860,  infra. 

The  act  of  Congre.<<s  makes  it  '"a  condition  necessary'  to  enable  the 
discoverer  to  invoke  the  protection  of  this  government,  that  he  'shall 
take  peaceable  possession  thereof  and  occupy"  the  island,  rock,  or  key. 
It  is  not  for  me  to  indicate  the  manner  in  which  such  occupation  may 
be  maintained  against  fresh  discoverers,  or  in  which  they  may  be 
att'ected  with  notice  of  the  prior  claim.  I  could  only  suggest  what 
ordinary  prudence  would  recommend,  that  such  measures  should  be 
taken  as  to  leave  no  doubt  that  an  actual  occupation  has  been  taken  in 
good  faith  with  the  intention  of  making  it  continuous  and  permanent." 

^Ir.  Seward,   Sec.  of  State,  to   Mes.^rs.   Kittrerlore  &   I'roctor,   ^Nlay  9,  1866,   73 
MS.  Dom.  Let.  57. 

'"Before  any  island  can  be  declared  as  appertaining  to  the  Tnited 

States  for  the  purposes  sijecitied  in  the  Guano  Act  of 
Executive  action.  '       "^  ^ 

1S50.  proof  must  be  furnished  to  the  Department  not 
only  of  the  fact  of  its  discovery,  but  also  of  its  artuaL  co/tf/'/n/oxs  nnd 
pt^xici^dhh'  occupation,  by  a  citizen  of  the  United  States,  accompanied 
with  a  reliable  estimate  of  the  quantity  of  guano  on  the  island  and 
an  analysis  of  its  quality  under  the  certiticate  of  .some  competent 
chemist." 

Mr.  Black,  Sec.   of  State,  to  Mr.  Marshall,  Dec.  28,  I860,  .53  MS.  Doin.  I^t. 
336. 

Upon  the  sul)mission  to  the  Department  of  State  of  sufficient  proof 
of  the  fulfillment  of  the  conditions  prescribed  l)y  the  statutes,  the 
President  '"may.  in  his  discretion,  regard  the  island  or  islands  contain- 
ing the  discovered  deposits  as  appertaining  to  the  United  States,  but 
he  is  not  obliged  to  do  so.  The  President  may  likewise  nominate  the 
bond.  ))ut  in  order  to  fix  the  penalty  correctly  and  determine  the 
sui-eties  contemplated  1)V  the  law.  it  is  absolutely  necessary  that  he 
should  be  fully  informed  as  to  the  value  of  the  deposit.  ...  In 
former  years  it  was  the  custom  of  the  Department  to  issue  a  proc- 
lamation (which  was  delivered  to  the  discoverer)  after  it  had  satisfied 
itself,  as  the  law  requires,  in  the  matter  of  the  discoverer's  proof  and 
alh^gations.  l)ut  this  appears  to  have  been  discontinued  for  some  time 
past." 

Mr.   (ireshani.  Sec.   of  State,   to  Mr.   (iordon,   Oct.   19,  1893,   194  MS.   Dom. 
Let.  57. 

The  discontinuance  of  th<'  pi'actice  of  issuing  -a  proclamation,  oi 
certiticate.  to  show  tiiat  the  conditions  of  the  statute  had  been  complied 

II.  Doc.  551 ot) 


502  SOVEREIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  113. 

with,  iiiid  that  the  Prosidont,  in  the  exercise  of  his  discretion,  "con- 
sidenHl"  the  island  "as  appertaining  to  the  United  States,"  may  per- 
haps l)e  accounted  for  by  the  circumstance  that,  l>et\veen  the  years  1869 
and  187'.».  no  islands  were  added  to  the  list,  with  the  result  that,  when 
new  applications  were  made,  the  previous  ])racticc  in  such  matters, 
having  become  unfamiliar,  was  not  observed.  The  fact  of  the  depart- 
ure from  the  earlier  practice,  and  the  subsequent  recognition  of  its 
adaptation  to  the  re(iuirements  of  the  law,  may  be  seen  in  the  two 
following  (Quotations: 

••This  (Toveriunent  does  not  grant  protective  rights  to  alleged  dis- 
coviM-ers  of  guano  islands.  It  simply  makes  this  Department  the 
dei)()sitory  of  such  papers  as  discoverers  may  choose  to  place  upon  its 
tiles.  The  only  action  this  Government  can  be  expected  to  take,  in  the 
event  of  any  of  its  citizens  becoming  embroiled  in  a  controversy  with 
citizens  or  sul)jects  of  a  foreign  Government  with  regard  to  ownership 
of  guano  deposits,  is  to  use  its  diplomatic  interference  to  redress  the 
wrongs  inflicted  upon  its  citizens  should  they  not  in  any  manner  have 
transgressed  the  laws  of  a  foreign  nationality.-' 

3Ir.  Hunter,  Acting  Sec.  of  State,  to  Mr.  Russell,  July  3,  1880,  133  MS.  Doin. 
Let.  491. 

'"From  your  letter  of  October  12th  in  reply  to  mine  of  the  3rd  of  the 
same  month,  both  relating  to  certain  islands  included  in  a  list,  issued 
by  your  Department,  of  'Guano  Islands  appeiiaining  to  the  United 
States.  l)onded  under  the  Act  of  August  iSth,  18.56,'  it  appears  that  the 
list  was  based  upon  bonds  couditioned  for  lawful  shipment  and  sale  of 
guano  from  those  islands,  approved  by  this  Department  in  the  years 
1880,  1881  and  1881,  and  filed  in  the  otfice  of  the  First  Comptroller  of 
the  Treasury. 

•'A  careful  search  of  the  tiles  of  this  Department  has  been  made  for 
the  purpose  of  ascertaining  whether  or  not  the  President,  in  pui'suance 
of  the  discretion  vested  in  him  l)y  Section  o.jTO  of  the  Revised  Statutes, 
ever  declared  that  these  islands  shoidd  •  be  considered  as  appertaining 
to  the  United  States.'  No  evidence  can  be  found  of  such  a  declaration. 
Neither  can  there  ])e  found  in  this  Departiuent  any  explanation  of  the 
approval  of  such  bonds.  Their  approval  cannot.  I  think,  be  considered 
as  an  exercise  of  the  President's  discretion  to  consider  the  islands  to 
which  they  relate  as  •appertaining  to  the  United  Suites,"  although  your 
Department  was  natui'ally  led  ])y  the  circumstance  of  tinding  the  bonds 
on  file,  to  include  thi^  islands  in  the  list  mcMitioned. 

•'The  Mexican  Government  insists  that  the  islands  are  within  its 
territory  and  lawfid  jurisdiction,  and  that  imder  the  t^'rms  of  Section 
5570,  they  never  could  have  been  •  i'onsider(>d  as  appcrtjiining  to  the 
Unitinl  States.*  HoAvever  this  niay  be.  it  seems  safe  to  say  that  they 
never  have  been  so  'considered'  within  llie  meaning  of  that  section. 


§  113.]  -  GUANO    ISLANDS.  563 

"I  may  also  add  that  the  Department  .some  time  since  addressed 
letters  to  persons  who  are  shown  by  papers  tiled  here  to  claim  an  inter- 
est in  these  islands,  and  so  far  as  heard  from,  they  are  unable  to  pro- 
duce an}'  evidence  showing  that  as  to  such  islands  the  President  has 
ever  exercised  the  discretion  vested  in  him  by  the  guano  islands  Act. 

'"I  have  therefore  to  request  that  the  islands 

'•viz:  Arenas,  Perez,  Chica,  Pajoras,  and  the  Western  Triangles, 
as  well  as  Arenas  Key,  may  be  stricken  from  the  list  of  guano  islands 
appertaining  to  the  United  States." 

Mr.  Gresham,  Sec.  of  State,  to  the  Secretary  of  the  Trea.sury,  Nov.  17,  1894, 
199  MS.  Dom.  Let.  437.  Of  the  islands  above  mentioned,  Arenas  Key  was 
added  to  the  hst  in  1879;  Arenas  and  the  Western  Triangles,  in  1880;  and 
Perez,  Chica,  and  Pajoras,  in  1884. 

The  certificate,  commonly  called  a  proclamation,  originally  issued  b}^ 
the  Department  of  State  to  the  alleged  discoverer  of  a  guano  deposit, 
set  forth  the  facts  in  regard  to  the  di.scovery,  occupation,  and  bond- 
ing, under  the  act  of  1856,  and  then  declared  that  the  discoverer,  or 
his  assignee,  as  the  case  might  be,  was  *' entitled,  in  respect  to  the 
guano  on  the  .said  island,  to  all  the  privileges  and  advantages  intended 
by  that  act  to  be  secured  to  citizens  of  the  United  States  who  ma_v 
have  discovered  deposits  of  guano, — provided,  always,  that  the  .said 
[name  of  discoverer,  or  assignee]  shall  abide  by  the  conditions  and 
requirements  imposed  ])v  the  act  of  Congress  aforesaid.''  It  was  then 
attested  by  the  Secretary  of  State  under  the  seal  of  the  Department. 

53  MS.  Doin.  Let.    3;  id.  447. 

See,  also,  Jones  v.  United  States  (1890),  137  U.  S.  202. 

The  effect  of  this  certificate  was  to  confer  on  the  discoverer  and  his 
a.ssigns  the  rights  given  by  the  statute  to  tho.se  who  fiUfilled  its  condi- 
tions. , 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Russell,  April  5,  1878,  122  3IS.  Dom.  Let. 
384,  referring  to  a  certificate  issued  by  the  Department  of  State,  in  Decem- 
ber, 1868. 

"It  is  not  competent  for  this  Department  to  guarantee  the  title  of  the  alleged 
discoverer."'  (Mr.  Day,  Assist.  Sec.  of  State,  to  Mr.  Chambers,  Sept.  27, 
1897,  221  MS.  Dom.  Let.  203.) 

'"The  power,  conferred  on  the  President  of  the  United  States  by 
.section  1  of  the  act  of  Congress  of  1856,  to  determine  that  a  guano 
island  shall  be  considered  as  appertaining  to  the  United  States,  being 
a  .strictly  executive  power,  affecting  foreign  relations,  and  the  manner 
in  which  his  determination  shall  be  made  known  not  haxing  been  pre- 
scribed by  statute,  there  can  ))e  no  doubt  that  it  may  l)e  declared 
through  the  Department  of  State,  whose  acts  in  this  regard  are  in 
legal  contemplation  the  acts  of  the  President.      M'oLsci/  v.  C'/icijj//ian, 


r)(>4  s(»vkhki(;nty:  its  acquisition  and  loss.  [S  113. 

Idl    r.  S.  T:.:),  77t>:  Riinllr  V.   rnlttd  Sfah-s,  122  U.  S.  543,  557;  11 
Opinioii.-s  of  Attonicvs  (Jenenil.  397,  399." 

.I..n.-s  '.  riiite.1  Stati'.-^  (ISW),  137  U.  8.  202,  217. 

Thf  f(in'<r<(iii<r  passairt'  relattMl  to  a  oertilkate  or  proclamation,  the  text  of 

wliiih  in  ^iveii  in  the  opinion,  isi^ueil  by  the  Department  of  !?tate  in  the 

I'ase  of  Xavussa  Island. 

It  is  not  the  })i"acti(e  of  the  Depai'tment  to  vouch  for  the  legfality  of 
iiiortof!io-(>s  and  assionincnts  in  I'espect  of  o'uaiio  islands.  It  merely 
phu-es  them  on  rile  as  reijuested.  and.  havinof  jio  means  of  assurance 
tiiat  they  constitute  a  completi'  record  even  as  they  stand,  declines  to 
recoinit  them  to  iiKiuirers.  though  they  are  open  to  inspection  by 
authorized  pei'sons. 

Mr.   (ire.<hani,   Sec   of  State,   to  ^Ir.   (Gordon,  Oct.    19,   LS93,  194  [MS.   Dom. 
Let.  -'.7. 

It  is  not  the  practice  of  the  Department  of  State  to  furnish  certified 
copies  of  papers  relating  to  guano  island  chiims,  except  to  the  legal 
holder  of  tile  claim  or  his  duly  authorized  repre.sentative. 

Mr.    Brown.   Chief    Clerk,   to   Mr.   Neymann,  Jan.   24,   1S79,  126  MS.   Dom. 
Let.  230. 

"The  act  of  Congress  of  August  is.  1856.  authorizes  the  President, 
after  certain  prerequisites  have  been  performed,  to 
determine  that  islands  upon  which  giuino  deposits 
have  been  discovered,  appertain  to  the  United  States.  It  is  only  after 
this  preliminary  decision  has  been  made  that  it  l)ecomes  neces.sary  to 
determine  whether  the  discoverers  may  have  exclusive  pos.session  of 
the  islands  for  the  purpose  of  taking  olf  the  guano  and  selling  it;  and 
the  bond  and  securities  piovided  for  in  the  second  .section  of  the  act 
are  not  recjuired  except  with  reference  to  the  exclusive  po.ssession." 

.Mr.  Ca.s-,  .Sec.  of  State,  to  Me.^sn^.  Wood  an<l  Grant,  July  1,  1857,  47  MS.  Dom. 
Let.  ^*y>. 

The  Itond  is  to  be  given  by  the  discoverer,  or  his  assigns;  but,  in 
determining  the  pi'o})er  i)arty  to  give  the  bond  re(|uired  l)v  the  act  of 
Congress,  the  political  de})artment  of  the  Government  can  only  look 
to  the  party  complying  with  the  conditions  of  the  statute,  without 
considering  the  legal  or  e(juitable  rights  of  other  ])arties  to  share  in 
the  })rorits  of  the  spcM-ulation.  the  determination  of  which  rights 
belongs  to  the  judicial  tribunals. 

9  Op.  :!t>4,  Black.  \sr>\). 

It  appears  that  by  a  ^'ciii-nil  rc>:ulation  of  the  Department  of  State,  in  force  in 

ist)9,  the  penalty  of  .«uch  a  bond   was  fixed  at   >:50,(X)0.     (Mr.  Seward, 

Sfc.  of  State,  to  -Mr.  Tayler.   Feb.  I.'i.  is6«(,  SO  MS.  Dom.  Let.  297.) 
The  iriiano  island  bonds  are  ki-pt   in  the  Treasury  Department.     (Mr.  Uh], 

.\  (tin).' .s,-c.  of  State,  to  tlie  Se<-.  of  the  Treasury.  Dec.  20,  1894,  200  MS. 

Dom.   Let.  41.     .Se  Mr.  (iresham.  Sec.  of  State,  to  the  Sec.  of  the  TreaS' 

ury,  l>ec.  5,  LS94,  199  MS.  Dom  Let.  589.  j 


§  U-t.]  GUANO    ISLANDS^.  5^5 

The  sureties  on  a  guano  island  bond  having  asked  to  be  released  from 
their  obligation,  on  the  ground  that  the  conditions  of  the  bond  had 
])een  violated  })y  their  principal,  and  that  the}'  had  no  power  to  restrain 
him  from  committing  further  breaches,  it  was  advised  that  the  Presi- 
dent possessed,  under  the  statute,  no  authority  to  grant  the  request. 

U  Op.  30,  Bates?,  1863. 

The  breach,  by  a  discoverer  or  his  assignee,  of  the  conditions  of  his 
bond  affects  "the  private  rights  only  of  the  delinquent,"  and  does 
"not  impair  the  dominion  of  the  United  States  or  the  jurisdiction  of 
their  courts."* 

Jones  r.  United  States  (1890),  137  U.  S.  202,  224.  On  the  contrary,  as  \va.s 
shown  in  the  case  of  Arenas,  Chica,  and  other  islands,  supra,  "the  bonds 
can  not  be  relied  upon  as  showing  tliat  the  islands  to  which  they  severally 
relate  arc  '  considered  as  appertaining  to  the  United  States.'  "  (Mr.  Uhl, 
Acting  Sec.  of  State,  to  the  Sec.  of  the  Treasury,  Dec.  20,  1894,  200  MS. 
Dom.  Let.  41.) 

(3)    RIGHTS   OF   THE    DISCOVERER. 

^  lU. 

The  discoverer,  when  the  terms  of  the  statute  have  been  fulfilled, 
acquires  for  himself  and  assigns,  ''(hiring  tJi<'  j^^^'"^"*'''  'if  CcngrtKs,  the 
exclusive  right  of  working  and  disposing  of  the  guano,"  subject  to  the 
conditions  and  limitations  prescribed  by  law. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Kussell,  April  .5,  1S78,  122  :\IS.  Dom.  Let. 
384. 

'•  The  right  conferred  l)y  the  United  States,  under  the  guano  islands 
act  of  August  is.  Is56,  c.  164  (Kev.  Stat.,  tit.  72).  upon  the  discoverer 
of  a  deposit  of  guano  and  his  assigns,  to  occupy,  at  the  pleasure  of 
Congress,  for  the  purpose  of  removing  the  guano,  an  island  determined 
))y  the  President  to  appertain  to  the  United  States,  is  not  such  an 
estate  in  land  as  to  be  su))ject  to  dower,  notwithstanding  the  act  of 
April  2,  1872.  c.  81  (Kev.  Stat.,  s(H'.  5572),  extending  the  provisions 
of  the  act  of  ISo^J  'to  the  widow,  heirs,  executors  or  adiuinistrators  of 
such  discoverer'  if  he  dies  before  fully  complying  with  its  provisions." 
Syllabus,  Duncan  r.  Xava.^^sa  Phosphate  (V).  (1891),  137  V.  S.  617. 

"The  pertinent  sections  of  the  Revised  Statutes,  557<>-78.  appear  to 
rest  wholly  on  the  American  ownership  of  the  rights  granted.  Sect. 
5573,  in  particidar,  says,  'The  discoverer  or  his  assigns,  Ih!ihj  vltizt-ns 
of  tlit^Unit'd  Stdffx,''  etc.  The  bond  given  is  luider  section  5574,  and 
(Migages  that  tiie  guano  shall  be  delivered  only  to  citizens  of  the  I'nited 
States  for  use  in  the  United  States;  but  that  section  has  btn^n  several 
times  suspended,  and  is  now  luider  suspension  for  five  years  from  the 
date  of  the  act  of  Congress  appi'oved  April  18,  1884.     This  suspension 


SGi)  soverkkjnty:  its  acquisition  and  loss.         [§115. 

pt>nnits  tlio  export  of  tho  guano  to  any  foivign  countiy,  or  on  account 
of  aliens:  but  it  clearly  does  not  suspend  the  precedent  condition  of 
American  ownership  of  the  grant  from  which  the  right  to  export  is 
derived,  and  upon  which  the  exercise  of  protection  and  jurisdiction  on 
the  part  of  the  United  States  depends.  Hence,  a  case  arising,  I  should 
diMMu  that  the  assigmnent  of  a  guano  grant  to  an  alien  owner  would 
amud  the  relation  which  the  Government  of  the  United  States  holds 
un(hn'  th<>  existing  statutes.'' 

:\Ir.  Bayard,  Sec.  (if  State,  to  Mr.  Parrott,  May  l.'{,  1885,  155  MS.  Dom.   Let. 

''  It  is  conceived  that  a  disallowed  or  abandoned  claim  would  not  be 
a  ))ar  to  the  su))sequent  acquirement  of  rights  under  the  act  of  Con- 
gress ))y  another  claimant." 

:Mr.  Bayard,  Sec.  of  State,  to  Mr.  Romero,  Mex.  Minister,  Feb.  18,  1886,  MS. 
Notes  to  Mexico.  IX.  1»)3. 

As  to  whether  the  nonuse  of  the  privilege  of  Avorking  the  guano 
causes  a  forfeiture  thereof,  "the  law  is  silent  upon  the  su])ject.  and 
the  DepartmiMit  has  never  prescribed  any  method  of  procedure  in 
such  case.  Moreovei'.  the  Department  has  no  power  to  adjudicate 
upon  any  conflict  that  may  arise  l)etween  parties,  who  are  compelled 
to  settle  their  ditlei'ences  ])efore  the  legal  tribunals  of  the  country. 
The  Department  has  never  attempted  to  determine  '  what  constitutes 
abandonment  of  a  guano  island/  and  it  seems  probal^le  that  this  ques- 
tion should  be  d(H'ided- by  the  courts,  the  case  arising."  The  same 
reply  may  be  made  to  the  (juestion  whether  an  island  "once  entered, 
and  forfeit(»d  oi-  abandoned  by  original  discoverer,  oi-  his  assigns," 
may  l)e  entcn'ed  upon  and  worked  by  other  parties,  not  claiming  imder 
the  original  giantee.  If  it  be  admitted  that  failure  to  work  the 
de])osit  causes  a  forfeiture  of  the  right,  the  Department  of  State,  "in 
the  absence  of  any  specific  provision  of  law  affecting  this  question, 
must  decline  to  fix  a  limit  of  time  as  a  precedent." 

:\rr.  (ireshaiH,  Sec.  of  State,  to  Mr.  (iordoii,  Oct.  19,  189:^,  194  MS.  Doni.  Let. 
57. 

The  Department  has  no  power  to  determine  disputes  })etween  citizens 
of  tlie  Ignited  States  in  respect  of  their  rights  in  a  guano  island,  "and 
th(>  claimants  nuist  vindicate  their  title  ])efore  the  legal  tribunals  of  tho 
count  i-y." 

Mr.  Fish,  Sec.  of  State,  to  Mrs.  Stevens,  .Tune  21,  18()9,  81  MS.  Dom.  Let.  289; 
Mr.  J.  ('.  P..  Davis,  Acting'  Sec.  of  State,  to  :Mr.  (Jray,  Aii<r.  21,  1869,  id.  570; 
Mr.  (iresham,  Sec.  of  State,  to  Mr.  (Jordon,  Oct.  19,  1893,  194  id.  57. 

(4)     MSTS    OK    ISLANDS. 

S  115. 

Two  formal  lists  of  guano  islands  appear  to  have  been  made  in  the 
Treasui-y  D(>partment.     The  first  one   was  annexed  to  a  circular  of 


§  115.] 


GUANO    ISLAND^^. 


567 


Mr.  McCuIloch,  Secreteiy  of  the  Troasurv,  to  collectors  of  custom.s, 
of  February  \'2, 1S(>H,  in  which  it  was  cU'scribed  as  a  "corrected  list," 
based  upon  '"  the  bonds  and  papers,  transnntted  from  the  Department 
of  State,  now  on  tile  in  the  office  of  the  First  Comptroller  of  the 
Treasury.''  The  second,  which  was  reported  by  the  First  Comptroller 
to  the  Secretary  of  the  Treasury.  Dec.  22,  188.5,  was  based  upon 
the  bonds  in  his  office,  and  inchided  the  islands  which  had  been  Vjonded 
since  1809.  A  copy  of  it  was  sent  to  the  Secretary  of  State  July  3, 
1890,  Another  copy  was  communicated  by  the  First  Comptroller  to 
the  Assistant  Secretary  of  the  Treasui-y,  Sept.  16.  Is98. '  Reduced  to 
one  alphabetical  list,  the  islands  that  have  been  bonded  are  as  follows: 


Xame. 

Latitude. 

Longitude. 

Number  and   date 
of  bond. 

o       /       // 

o 

,     ,, 

Alacrans  Islamls.  viz.  IVnz  Island,  Chi(  a  Island 

■*2  iT  00  N. 

S9  40  00  W. 

No 

10.  June 

•21,  1884. 

and  Pajoras  Island. 

America  Island.s 

.      3  40  00  N. 

1.59  28  00  W. 

No 

9,  Feb. 

8,1860. 

Anne's 

.      9  49  00  S. 

151 

15  00  W. 

Do. 

.    ■-'2  24  30  N. 
.    -J-i    7  10  N. 

91 
91 

24  30  W. 
24  30  W. 

No 
No 

15,  Oct. 
13,  Sept. 

18, 1880. 

Arenas  Key 

8.  1879. 

Baker's,  or  Nantucket,  or  New  Nantucket 

.      0  1-5  00  .\. 

170  30  00  W. 

No 

I.Oct. 

28,  1856. 

Barber's 

.      s  .54  00  N. 

17.S  00  00  W. 

No 

9.  Feb. 

8,  1860. 

Barren  or  Starve                                        

.      .5  40  00  S. 
.    11  4S  OOS. 

1-55 
1.51 

.5.5  00  W. 
10  00  W. 

No 
No 

0,  Dec. 
9,  Feb. 

27, 18.59. 

8  1860. 

Beacon  Kev,     i.'^ee  .Serrannilhi  Kevs.  i 

Biriiie.s'.   . 

.      3  3.-1  00  S. 
.      9  M  00  S. 

171  39  00  W. 
150  07  00  W. 

Do. 
Do. 

Caniline. 

Chica.     iSee  Alacrans  Islands.. 

Cli  ristmas 

1  .>s  tH)  N. 
.      9  07  00  S.    . 
.     10  (HJ  (X)  S. 

(i  30  00  N. 

1-57 
171 
Uio 
102 

10  00  W. 
40  00  W. 
50  00  W. 
23  00  W. 

No 
No 

7.  Dec. 

9,  Feb. 
Do. 
Do. 

29.  1859. 

Clarence 

8,  1860. 

Dang^ers  Kock 

Davids 

.      0  40  00  N. 
.    1.')  40  00  N. 

s  30  00  S. 

170 
(53 

172 

10  00  W. 
37  00  W. 
10  00  W. 

No 
No 

Do. 

14,  Sept. 
9,  Feb. 

De  Anes 

13,  1880. 

Duke  of  York 

8,  1860. 

East  Kev.     (See  Serrannilla  Ki'vs.  i 

Enderburv  

3  08  00  S. 

171 

08  00  W. 

No 

0.  Dec. 

27.  ia59. 

Enderbur\-s 

3  0.S  00  S. 

174 

14  00  W. 

No 

9.  Feb. 

8,  1860. 

Fanner's  .... 

3  00  00  S. 
.      2  .=^0  00  S. 
.     10  3-J  00  S. 

.   1 1  •-'(;  00  s. 

.       9  .>■  (XI  S. 

.   10  m  OOS. 

I    42  (K)  N. 

170  50  00  W. 
170  40  00  W. 
102  05  00  W. 
151  48  00  W. 
101  40  00  W. 
150  .50  00  W. 
104  05  00  W. 

Do. 
Do. 
Do. 
Do. 
Do. 
Do. 
Do. 

Favorite 

Flint 

Flint's 

Frances 

GallcK" 

Ganges 

.     1(1  59  00  S. 

100 

.55  00  W. 

Do. 

Gardners 

.       4    10  00  S. 

174 

.52  00  V,-. 

Do. 

Great  Swan.     (See  Swan  islands,  i 

Groninque 

.     10  00  (X)  S. 

1.50 

44  00  \V. 

Do. 

Hero.     (See  Starlidck., 

Howland  or  Nowlands 

0  52tX)N. 
.     10  40  OOS. 

170 

100 

.52  00  W. 
52  00  \V. 

No 
No 

4.  Dec. 
9,  Feb. 

3.1858. 

Humphrev's 

8,  1800. 

Islands  in  Cariblx-an  Sia.     .Not  iianii'd 

No 

11.  Aug. 

12,  1808. 

"Sec  Ma;,'o. 

m's  Ke[iort,  VJ. 

5(^8 


sovkkeignty:  its  acqitisition  and  loss. 


[§  115. 


NniiU'. 

Latitude. 

Lo 

ngitude. 

Number  and    date 
of  bond. 

O       1       II 

o 

'    II 

0  21  00  S. 

1.59  52  00  \V. 

No.    2,  Oct.    28,  ]85<J. 

No.    5,  Sept.    0,1859. 
No.   9,  Feb.     8  IStiO. 

I  41  (K)  S. 
1 1  05  00  S. 

173  44  00  W. 
101  50  00  \V. 

LidcTons                                               

Do. 

Littlo  Swan.     (Si'c  Swan  Islands. ) 

9  33  tK)  S. 

3  02  00  N. 

4  00  00  S. 
4  40  00  S. 
2  .53  00  S. 

2  03  00  N. 

3  35  00  S. 

170 
172 
1.55 
173 
172 
173 
174 

38  00  ■«•. 
46  00  W. 
00  00  W. 
20  00  W. 
00  00  \V. 

2t;  00  w. 

17  00  W. 

Do. 

Do 

No.   8,  Dec.  29, 1859. 

No     9  Feb      8  1860 

Marv's.           .                         

Do. 

Mfttlu'ws                            

Do. 

No.    6,  Dec.  27  18.59 

MiddU'  Key.     (Sec-  Strrannilla  Keys.) 

Morant    Keys— Northeast     Key.  San<l    Keys.  Sa- 

vanna Kev,  ^eal  Kev 

17  20  00  N. 

77 

55  00  \V. 

No.  13,  Sept.    8,  1879. 

Nantucket,     i  See  Baker's,  i 

11  30  00  S. 
IS  10  00  N. 

.105 

75 

30  00  W. 
00  00  W. 

No.    9.  Feb.     8, 1860. 

Na  vassa 

No.    3,  Aug.  31,  1858. 

New  Nantueket.     (See  Baker's,  i 

Northeast  Key.     (See  Morant  Keys.) 

Nowlands.     (See  Howland.) 

Pajoras.     (See  .Vlacrans  Islands,  i 

F'alm  vn  )s 

5  48  00  N. 

162 

20  00  W. 

No.    9.  Feb.     8,  1860. 

Pedro  Kevs 

No.  12,  Nov.  22,  1869. 

Penhnyn'N  

8  .55  00  S. 

158  07  00  W. 

No.    9,  Feb.     8,  1860. 

Perez.     (See  .\lacrans  Islands,  i 

Pescado 

10  3.S  00  S. 

1.59 

20  00  W. 

Do. 

Petrel     . 

No.  12,  Nov.  22,  18^9 

Phielli.x 

3  40  00  S. 

3  47  00  S. 

4  42  00  N. 
10  32  00  S. 

170 
170 
ItJ! 
170 

52  00  W. 
55  00  W. 
38  00  \V. 
12  00  W. 

No.    9,  Feb.     8,  l.SOO. 

Phieliix 

No.   6,  Dec.  27, 18.59. 

Pros))eet 

No.    9.  Feb.     8,  l.HCO. 

t^uiros 

Do. 

t^iiilo  Sereno 

No.  12,  Nov.  22.  1809. 

Rierson's 

10  10  00  S. 

11  00  00  S. 

UiO  53  00  W. 
156  07  00  \V. 

No.   9,  Feb.     8, 1860. 

Kof,'fWein's  islands _ 

Do. 

KoiKiKlor 

No.  12.  Nov.  '22,  1869. 

Saiiiaiali'.,'  Inland- 

5  10  00  N. 

1(12 

20  t)0  W". 

No.    9,  Feb.     8,  1860. 

San<l  Keys.       S.r  .Mmant  K.ys.  i 

1  (10  (HI  N. 

1.54 

•22  CXI  W. 

Do. 

Savanna  Kev.       Sic  Morant  Kev-. 

Seal  Key.      iSec  Morant  Kcy>.  i 

Scrrannilla  Ke\s— I-;a-l  Kc\,  Middle  Key.  Beacon 
Kev 

15  -JK  (Kl  N. 

79 

40  00  \V. 

]No.  13,  Sept.    8,1879. 

ixo.  14,  Sept.  13,  1880. 

1  '20  tK)  S. 
5  25  (K)  S. 

171 
1.55 

(Ml  m  \v. 

56  00  W. 

No.    9,  Feb.     8.  1860. 

Slarliuck  or  Hero 

Do. 

Starve.     (  Sec  I'.arren.  i 

Slaver'- 

10  (15  tM>  S. 

1.52 

10  00  \v. 

Do. 

Swan  i-latid-.  tircat  ami  Little,  in  the  Carit.hcan 

Sea 

No.  10.  Dee.   30,  1862. 

rahiii,'a.     I  See  \\a<liini:t'in. 

\Valker> :;  5s  w  N. 

Wa-hinuion  or  I'ahnga I    lo  <M)  N. 

We-tern   Priati^rle^- 211  51  (Hi  N. 


I  19   10  00  \V, 
ICll  07  00  \V. 


No.    y,  Feb.     8,  1860. 
Do. 


13  00  \V.      No.  n.  Sept.  13,  1880. 


§  115.]  •  GITANO    ISLANDS.  569 

Nov.  21,  1894.  ]VIr.  Wike,  Assistant  Socretary  of  the  Trpasuiy,  sent 
out  the  following  circular: 
"To  Collectors  of  Customs  and  Others: 

'"At  the  request  of  the  Secretary-  of  State,  the  followino'-named 
'Guano  Islands/  specified  in  lists  issued  by  this  Department  of  Guano 
Islands  appertaining  to  the  United  States,  will  be  considered  as  stricken 
from  said  list,  and  no  longer  included  among  the  Guano  Islands 
bonded  ])y  the  United  States  under  the  Act  of  August  IS,  1S5(),  viz: 
"Arenas,  Pajoras.  Arenas  Key, 

"Perez,  Chica,  Western  Triangles."' 

The  letter  of  the  Secretary  of  State,  dated  Nov.  IT,  1894,  and  con- 
veying the  request  mentioned  in  the  foregoing  circular,  is  given,  supra, 
§113.  Nov.  28,  1894:,  the  Secretary  of  the  Treasury  sent  a  list  of  the 
bonded  islands  to  the  Department  of  State,  and  asked  that  it  be  further 
revised,  so  as  to  include  only  islands  which  were  then  "considered  as 
appertaining  to  the  United  States."  The  Department  replied  that  this 
would  require  the  passing  on  the  rights  of  a  large  number  of  private 
persons,  and  that  it  was  preferred  not  to  do  it  unless  their  action 
should  render  it  necessary. 

Mr.  Gresham,  Sec.  of  State,  to  the  Sec.  of  the  Treasury,  Jan.  14,  1895,  200 
MS.  Dom.  Let.  254. 

The  following  information,  collected  in  the  Department  of  State  and  elsewhere, 
touching  alleged  guano  ii^lands,  embraces  islands  that  have  not  been,  as 
well  as  those  that  have  lieen,  considered  as  appertaining  to  the  United 
States.  By  "  discoverer"  is  meant  the  person  by  whom  the  claim  of  dis- 
covery of  a  guano  deposit  was  made,  without  regard  to  the  question 
whether  the  claim  was  well  founded. 

Agnes  Island. — Discoverer,  William  H.  Parker,  who  also  gave  bond.  (Mr. 
Payson,  Third  Assist.  Sec.  of  State,  to  Messrs.  McDaniel  and  Souther,  May 
26,"  1880,  i;«  MS.  Dom.  Let.  132.) 

As  to  certain  assignments,  see  Mr.  Payson,  Third  Assist.  Sec.  of  State,  to  ^Ir. 
Granger,  May  28,  1880,  l.^:^  MS.  Dom.  Let.  157. 

Mr.  Fish  declared  that  the  Department  had  "  exhausted  all  its  powers  in  rela- 
tion to  the  islands  in  cjuestion  [Agnes  and  Jonnson's],  the  history  of  the 
conflicting  claims  to  which  may  be  found  in  an  opinion  of  the  Attorney- 
General,  dated  July  9, 1859."  The  Department  would  strictly  confine  itself 
to  an  exj)ression  of  its  willingness  to  put  on  file  any  respectful  paper  that 
might  be  offered,  leaving  the  effect  of  it  to  l)e  determined  by  the  courts. 
(Mr.  Fish,  Sec.  of  State,  to  Mr.  Samson,  April  12,  1870,  84  MS.  Dom.  Let. 
153.) 

Copies  of  all  pai)ers  in  the  Department  relating  to  Agnes  and  ,]ohn.«on  islands 
would  cdst  !?85.  (Mr.  Rives,  Assistant  Sec.  of  State,  to  Mr.  Patterson, 
April  19,  1888,  168  MS.  Dom.  Let.  144.) 

Alacniiix  Kei/s,  embracing  Perez,  tallica,  and  Pajoras. — Discoveivr,  Janits  W. 
Jennett,  February,  1879;  declaration,  Sej)t.  1,  1879;  bonded,  June  21, 
1884.  As  appears  above,  they  have  been  stricken  from  the  list.  (Mr. 
Gresham,  Sec.  of  State,  to  Treasury,  Oct.  19,  1893,  194  MS.  Dom.  Let.  57; 
Mr.  I'hl,  Acting  Sec.  of  State,  to  Treasury,  Oct.  3,  1894,  199  id.  49;  Mr. 
I'hl,  Acin.g  Si'c.  of  State,  fo  :\Ir.  P.rasli,  Oct.  15,  1894.  id.  147;  Mr.  TTJil, 


570  SOVKREIGXTV:    ITr^    ACQUISITION    AND    LOSS.  [§115. 

Artiiitr  Sec.  <»t  State,  t<>  Mr.  AVilbur,  Oi-t.  15,  1894,  ibid.;  Mr.  Gresham, 
Sw.  of  State,  t..  Trea,>^ury,  Nov.  17,  lSi)4,  199  MS.  Doiii.  I^t.  437;  Mr. 
CVi.Uer,  .Sr.l  A^?i.<t.  See.  of  State,  t<»  Mr.  Altiiian,  Aug.  S,  1S99,  239  id.  197.) 

Alt"  ]'il<i. — The  Deiiartiuent  of  State  ileelinetl  to  recognize  the  elaim  of  a  cer- 
tain linn,  under  the  act  of  1856.  It  .<eeins  tlmt  a  right  to  the  guano  \va.s 
at  tlie  f^anie  time  claimed  by  anotlier  linn  under  a  concession  from  the 
Dominican  (iovernment.  (Mr.  Fish,  Sec.  of  State,  to  Messrs.  Spofford 
et  al.,  Sept.  10,  18H9,  82  MS.  Dom.  Let.  55. )  See  S.  Kx.  Doc.  38,  40  Cong. 
2  sess. ;  II.  Mis.  Doc.  10,  40  Omg.  3  se.«s.  "St.  Domingo  had  extende<l  its 
jurisdiction  over  Aha  Vela,  incoriK)rated  it  by  name  as  a  part  of  a  prov- 
ince or  i>oliticai  subdivision  of  the  nation,  and  extended  over  it  the  laws 
of  the  Kej.ublic."'  i  Mr.  Fisli,  Sec.  of  State,  to  Mr.  Pre.ston,  Dec.  31.  1872, 
MS.  Notes  to  Hayti,  I.  124.  144.  ) 

Arc'iK  hliiiid.  or  A'<  (/.--( "ontlicting  claims  of  di.^covery  were  made  by  Jas.  W. 
Jennett  and  Pascal  A.  Quinan.  (Mr.  Hay,  Assist.  Sec.  of  State,  to  Mr. 
Long,  Dec.  11.  1879,  and  to  Mr.  WalHs,  same  date,  131  MS.  Dom.  Let.  17; 
Mr.  Porter,  Acting  Sec.  of  State,  to  Mr.  Buckey,  Feb.  5,  1886,  158  MS. 
Dom.  Let.  651.  i  It  was  stated  in  1887  that  no  controversy  had  arisen 
with  Mexico  in  regard  to  the  island.  (Mr.  Porter,  Assist.  Sec.  of  State, 
to  Mr.  Shelley,  July  23,  1887,  164  MS.  Dom.  Let.  677.)  Subsecjuently, 
however,  it  was  stated  that  Mexico  claimed  the  Arca-s  Cays  as  part  of  the 
Arenas  <  Jrouji.  (  Mr.  Cridler,  Third  A.ssist.  Sec.  of  State,  to  Mr.  Southard, 
Feb.  26.  19(K).  243  MS.  Dom.  I^t.  226.  This  letter  contains  the  following 
statement:  "  The  Areas  Cay  do  not  appear  in  the  'list  of  guano  islands 
appertaining  t<i  the  United  States  bonded  under  the  act  of  .\ugust  18, 
1S56,  as  ajiiK'ars  from  bonds  on  tile  in  the  office  of  the  Comptroller  of  the 
Treasury:'  but  an  atlidavit  of  discovery  was  tiled  in  this  Department. 
.  .  .  I  can  not  tin<l  that  the  Department  ever  made  any  repre.sentations 
to  the  Mexican  (iovernment  on  the  sul)ject  of  the  .\rcas  Cays.  It  can  not 
therefore  be  said  that  this  (iovernment  has  either  recognized  or  disputed 
the  Mexic-an  claim.'"  )  See  S.  Fx.  Doc.  151,  52  Cong.  I  sess.  It  was 
stated  in  1897  that  no  a.'^sigiunents  of  interest  in  the  island  had  been  made 
since  the  issuance  of  that  <locument.  (Mr.  Day,  Assist.  Sec.  of  State,  to 
Mr.  Money.  Sej.t.  27.  1S97,  221  MS.  Dom.  I^t.  208.)) 

.1/';*"^.  and  All  I, IIS  K'li. — Arenas  Key:  Discoverer,  .lames  W.  Jennett; 
Ixinde'l,  Sept.  s,  ls79;  a.ssignments  of  interest  ma<le  in  the  same  year. 
I  12^t  MS.  I)..m.  Lit.  296:  130  i<l.  92.1  Arenas:  Conflicting  claims  of  dis- 
covery by  Jas.  W.  Jennett  and  John  (,i.  Wallis  (194  MS.  Dom.  I>et.  57); 
bonded  Oct.  IS.  ISSO. 

The  .American  occujiants  having  l.'een  removed  by  the  Mexican  (iovernment 
from  .Arenas  Key. as  tresjiassers.  the  I>epartment  of  State  was  "not  .  .  . 
able  to  reach  tlie  conclusion  that  this  island  was,  if  at  all,  sufliciently 
•lerelict  to  warrant  a  ileniand  for  reparation  from  that  Government." 
(Mr.  Frelingliuysen..Sec.  of  State,  to  Mr.  Brewer,  M.  C.,  Junt'  15,  1882,  142 
MS.  Dom.  Let.  411.  I  The  Mexican  legation  was  advised  of  this  opinion. 
(Mr.  Frelinirtiuyseii,  Sec.  of  State,  to  the  Mex.  minister,  June  29,  1882, 
enclosing  a  c .|.y  ..f  tlu'  letter  to  Mr.  Brewer.  MS.  Notes  to  Mex.  Leg. 
VIII.  343.)  Tliis  oi>iiH<«n  was  realHnned  (Mr.  Bayard,  Sec.  of  State,  to 
-Mr.  Fverhart.  March  Id.  Lss.-i.  i.->4  MS.  Dom.  Let.  421  i;  but  the  Depart- 
ment afterwards  decline«l  to  comjily  with  the  reijuest  of  the  Mexican 
minister,  juade  with  reference  to  a  suit  which  his  (iovernment  proposed 
to  institute  in  the  Unite<l  States  courts  against  certain  .American  vessels 
for  removing  guano  from  Arenas  Key,  to  strike  the  island  from  the  list, 
notify  the  purt  authorities,  au'i  cancel  thel)ondsof  the  allege<l  discoverers, 


115.]  GUANO    ISLANDS.  571 

the  Department  saying  that,  assuming  the  matter  tol)e  one  of  judicial  cog- 
nizance, the  question  whether  the  defendants  had  title  would  be  "for 
decision  by  the  court  .  .  .  after  hearing  the  evidence  on  lioth  sides," 
and  that  if,  on  the  trial,  evidence  of  the  action  of  the  Dej^artnient  was 
needed,  it  could  be  obtained  in  the  ordinary  wav  l>y  calling  for  certified 
copies  of  the  records.  (Mr.  Porter,  Acting  Sec.  of  State,  to  -Mr.  Romero, 
Mex.  min.,  Jan.  18,  1886,  MS.  Notes  to  Mex.  IX.  145.)  On  another  occa- 
sion it  was  said  that  the  letter  of  ^Ir.  Frelinghuysen  to  ]Mr.  Brewer  "  left 
the  question  of  title  open,"  but  that  the  recent  correspondence  would  be 
sent  to  the  Secretary  of  the  Treasury  "to  the  end  that  his  Department 
may  adopt  such  course  as  it  thinks  best  concerning  the  omission  of  Arenas 
Island  from  the  list  of  guano  islands."  (Mr.  Adee,  Acting  Sec.  of  State, 
to  Mr.  Romero,  Jan.  30,  1886,  MS.  Notes  to  Mexico,  IX.  lo2;  Mr.  Adee, 
Acting  Sec.  of  State,  to  Mr.  Manning,  Jan.  80,  1886,  158  :\IS.  Dom.  Let. 
597. )  Subsequently,  however,  the  [Mexican  minister  was  invited  to  submit 
further  proofs  of  jurisdiction  (Mr.  Bayard,  Sec.  of  State,  to  Mr.  Romero, 
Feb.  18,  1886,  MS.  Notes  to  Mexico,  IX.  163);  and  it  was  stated  that 
there  was  nothing  to  show  that  the  Mexican  claim  "  had  ever  been  con- 
troverted by  the  l^^nited  States."  (Mr.  Bayard,  Sec.  of  State,  to  Mr. 
Fisher,  Feb.' 26,  1886,  159  MS.  Dom.  Let.  173.)  April  23  and  June  21, 
1886,  Mr.  Romero,  Mexican  minister,  hied  various  historical  proofs  of  the 
title  of  Spain  and  of  the  rights  of  ^lexico  as  her  successor.  (Mr.  Bayard, 
Sec.  of  State,  to  :\Ir.  Manning,  June  30,  1886,  160  MS.  Dom.  Let.  616.) 
These  proofs  were  such  that  the  United  States  "practically  acquiesced  in 
the  Mexican  claim  of  jurisdiction."  (Mr.  Wharton,  Assist.  Sec.  of  State, 
to  Mr.  Brewer,  [March  22,  1890,-177  MS.  Dom.  Let.  243. )  At  length,  after 
full  consideration,  the  islands  were,  on  the  request  of  the  Secretary  of 
State,  stricken  from  the  list.  (Mr.  I'hl,  Acting  Sec.  of  State,  to  Treas- 
ury, Oct.  3,  1894,  199  MS.  Dom.  Let.  49;  Mr.  Uhl,  Acting  Sec.  of  State, 
to  Mr.  Graybill,  Oct.  15,  1894,  id.  147;  to  Mr.  Gatchell,  Oct.  16,  1894, 
id.  157;  Mr.  Gre.sham,  Sec.  of  State,  to  Trea.sury,  Nov.  17,  1894,  id.  437.) 
Ares  (or  Bird)  Zs7'n((/.— Citizens  of  the  United  States  discovered  guano  on 
one  of  these  islands  in  1854  and  took  possession  of  it.  This  was  prior  to 
the  Guano  Islands  act.  The  Venezuelan  Government,  under  a  claim  of 
sovereignty,  expelled  them  and  broke  up  their  business.  The  United 
States,  understanding  that  the  islands,  when  occupied  l)y  its  citizens, 
"were  not  embraced  within  the  sovereignty  of  any  power,  but  were  dere- 
lict," presented  to  Venezuela  a  claim  for  damages  "for  molesting  them  [the 
occupants]  and  breaking  up  their  business."  (Mr.  Marcy,  Sec.  of  State, 
to  Mr.  Fames,  minister  to  Venezuela,  Jan.  24,  1855,  S.  Ex.  Doc.  25,  34 
Cong.  3  sess.  4. )  The  dispute  was  settled  by  a  convention  signed  bj-  the 
United  States  minister  to  Venezuela  and  the  Venezuelan  secretary  of  for- 
eign relations,  Jan.  14,  1859,  Venezuela  agreeing  to  pay  $130,000  to  indem- 
nify the  claimants  for  their  losses,  and  the  United  States  engaging  to  make 
no  further  claim  to  tiie  islands.  (S.  Ex.  Doc.  10,  36  Cong.  2  sess.  458,  460, 
470,  472.  The  case  of  the  claimants  is  set  forth  in  S.  Ex.  Doc.  25,  34 
Cong.  3  sess.  35  et  seq.;  of  Venezuela,  in  S.  Ex.  Doc.  10,  36  Cong.  2  se.ss. 
287-371,  397-420.  See,  also,  Lawrence's  Wheaton  (1863),  319,  320;  Davis's 
Notes,  Treaty  Vol.  (1776-1887),  1403;  a  pami)hlet  entitled  "The  Aves 
Island  case,  with  the  correspondence  relative  thereto,  and  discu.«sion  on 
law  and  facts:  H.  S.  Sanford,  attorney  for  claimants,  Washington,  1861;" 
also,  Mr.  Seward,  Sec.  of  State,  to  Mr.  Culver,  Jan.  24,  1863,  MS.  Inst. 
Venezuela,  I.  259;  Mr.  Fish,  Sec.  of  State,  to  Mr.  Partridge,  Dec.  7,  1869, 


SoVKKKUiNTV:    ITS    ACQUISITION    AND    LOSS.  [§  115. 

id.  II.  147  K  .luiu'  ;W,  1865,  the  Ciueon  of  Spain,  as  arbitrator  in  a  dispute 
l>t't\vt'fii  tilt'  Xftherlands  and  Veni'znela  as  to  sovereignty  over  the  islands, 
reiidercij  an  award  in  favor  of  Venezuela.  (Int.  Arbitrations,  V.  5037; 
S<MJas.  I".l  hercclio  Internacional  IIis])ano-Anu'ricano,  IV.  210.) 
Jinl.i  r's  Islitml,  al.'^o  called  Xnidackd  and  Xcir  Xautucket. — Michael  Baker  claimed 
to  have  discovere<l  the  island  in  1S.'52.  lie  visited  it  in  18;W,  landing  and 
linding  guano  and  taking  i>osse.«sion  "  inuler  the  flag  of  the  United  States." 
He  revi.<ite<l  it  in  1S44,  1845,  and  1851.  (Mr.  Black,  Sec.  of  State,  to  Mr. 
.Marshall,  Dec.  28,  181)0,  5,S  MS.  Dom.  Let.  38().)  June  7,  1858,  a  committee 
of  the  House  of  Representatives  made  an  imfavorable  report  on  the  (|uality 
of  the  guano.  (11.  JJeport  .■507,  :>5  Cong.  1  sess. ;  S.  Ex.  Doc.  11,35  Cong.  1 
sess.  )  March  2.  !8til,  Mr.  Black,  Sec.  of  State,  issued  a  certificate  reciting 
that  the  .\nierican  ( inane  Comiianv,  of  New  York,  having  acquired  Baker's 
rights,  and  complied  with  the  act  of  185(3,  was  entitled  to  the  privileges 
thereof.  (53  :MS.  Dom.  Let.  447.)  The  Department  of  State,  in  1870, 
was  unal)le  to  say  whether  the  island  was  "  in  the  possession  of  the  I'nited 
States  (iuano  Company,"  or  whether  it  was  "unoccupied  and  vacant." 
(Mr.  Fish,  Sec.  of  State,  to  Mr.  Young,  :\Iarch  10,  1870,  83  MS.  Dom. 
Let.  447.  I  "These  islands  [leaker  and  Ilowland]  are  now,  it  is  believed, 
occupied  liy  emj>loyees  of  guano  companies  belonging  to  citizens  of  the 
I'nited  States,  who  ship  the  deposits  found  thereon  to  this  country  and 
elsewhere."  (  .Mr.  Cridler,  3d  Assist.  Sec.  of  State,  to  Miss  Lewis,  May  7, 
1898.  228  MS.  Dom.  Let.  .320.) 

HiKiliii  Kiij. — Conflicting  claims  of  discovery  l)y  J.  W.  .lennett  and  P.  A. 
(^uinan.  .lemiett  claimed  discovery  May  8,  1868,  and  assigned  his  interest 
.May  17,  lS7(i.  A  declaration  <if  <li.scovery,  on  behalf  of  Ciuinan,  was  filed 
l)y  L.  M.  Simpson,  Dec.  4,  188(1.  (Mr.  .\dee.  Second  Assist.  Sec.  of  State, 
to  .Mr.  Long,  Nov.  18.  1887,  KiH  MS.  Dom.  Let.  179.)  The  island  is  in 
iat.  14=  14'  N.,  long.  80°  'MV  W. 

('(ifin  \'er<li'.  —  Discoserer,  .7.  W.  Kendall,  of  Baltimore.  As  juri.«diction  over 
tiu' island  was  "  distinctly  asserted"  by  CJreat  Britain,  .Vttorney -General 
Black  ailviscd  tiiat  the  President  had  "no  right  under  the  law^  to 
annex  the  island  to  the  I'luted  States,  or  to  put  any  American  citizen  in 
[•ossessioH  of  it,  until  the  <liplomatic  question  raised  by  the  British 
minister  sliall  lie  finally  settle(l,  and  not  then  unless  it  be  settled  in  our 
faviir.'"  I  9  ( )p.  4o()  i  l.s59i.  )  The  President,  therefore,  declined  "to  take 
any  mtasnns  by  which  the  said  islantl  would  be  considered  as  appertain- 
ing to  111,.  Iiiiicd  States."      I  .Mr.  Cass,  ."^ec.  of  State,  to  Mr.  Brent,  March 

19,  istid,  52  MS.  I Let.  49.  I     --.Vs  to  Cayo  Venle,  both  occupancy  and 

jurisdicti.Mi  were  slii.wii  to  lia\c  been  exercised  on  that  island  by  the  local 
amhoritiis  of  .lamaica  long  previous  to  the  di.«covery  of  guano  on  it  by 
citizens  of  111,.  I  iiited  States. "'  i  Mr.  Fish,  Sec.  of  State,  to  Mr.  Preston, 
.lune  10,  1S7;;.  MS.  Notes  to  llayti,  I.  1.");',,  Kil;  cited  by  .L  Ilubley  Ashton, 
esquire.  ciiini-cl  I'or  the  rnite<l  States,  in  his  brief  in  the  ca.«e  of  (lOwen  A 
Copeland  \.  \'.iu/.iiela.  \o.  Hi,  V.  S.  and  N'enezuelan  Commission,  1889- 
1890.  See.  al-M.  Sen.  Report  2S0,  .",(;  Ciiig.  1  sess.:  Mr.  Ilay.  Sec.  of  State, 
to  Mr.  Wheel,  r,  April  7,  1900.  244  MS.  Dom.  Let.  2.30.) 

('lii)-(i  /.-•/';;((/. -Sec  Alacrans  Keys,  supra. 

clinsfiii'is  /.-/'o/</.-  Discoverer.  Cajitain  .lohii  Stetson,  of  New  Haven,  Conn., 
prior  to  1S57;  |iossessi<in  taken  .lini(>  20,  ls.")K.  by  Capt.  .1.  L.  Pendleton, 
of  the  shij)  ./nln>  M'ir.<h<i/I.  in  behalf  of  A.  (i.  iJenson  and  a.ssociate.s  under 
adce.l  from  Stetson  date-l  May  II.  I,s57.      A.C.  Benson  executed  May  13, 


§  115.]  GUANO    ISLANDS.  .573 

1S57,  an  a.<t-ignmeiit  of  all  interest.^  to  G.  W.  Ben.sju,  who,  Nov.  24,  iS5S, 
in  turn  conveyed  them  to  the  United  States  (iuano  Co.,  of  New  York, 
which  furnished  an  approved  bond  under  the  ^^tatute.•^.  In  1S(}5  a  license 
vva."  granted  Ijv  the  British  authorities  to  Dr.  Urowther,  of  Tasmania,  to 
enable  him  to  export  <ruano  from  Christmas  and  two  other  islands,  but, 
as  it  provetl  to  l)e  unprofitable,  his  license  was  canceled  in  1869  at  his 
own  request.  June  9,  1871,  a  new  license  was  granted  to  Mr.  Alfred 
Houlder  for  nine  years.  His  representative,  on  arriving  there  .July  5,  1872, 
fomid  that  the  island  had  lately  been  taken  pos.<ession  of  by  the  U.  S. 
sliip  Xarnit/atisf'lt,  and  that  it  was  then  occupied  by  three  men  in  the 
employ  of  C.  A.  Williams,  of  Honolulu.  Under  the  circum.'^tances,  ^Ir. 
Houlder  had  his  license  canceled,  but,  having  learned  that  Mr.  Williams 
had  given  up  occupation,  he  applied  for  a  renewal  of  it.  Before  acting 
on  this  application,  the  British  (iovernment,  in  onler  to  avoid  any 
question  as  to  the  right  of  sovereignty  over  the  island,  inquired  whether 
the  United  States  had  finally  abandoned  its  claim  to  it.  The  Department 
of  State,  referring  to  the  papers  on  which  rested  the  company's  title,  and 
observing  that  "no  notification"  had  been  7-eceive<l  that  the  company 
had  "abandoned"  the  island,  said:  '"They  [the  company]  are  .still  con- 
sidered to  be  entitled  to  the  protection  guaranteed  by  the  laws  of  the 
United  States,  in  their  jvjssessory  right,  so  far  as  such  occupation  may  be 
necessary  to  secure  to  the  company,  or  its  assigns,  the  deposits  of  guano 
found  thereon."  (Mr.  Evarts,  Sec.  of  State,  to  Sir  Edward  Thornton, 
April  1,  1879,  MS.  Notes  to  Gr.  Br.  XVIH.  18;  For.  Rel.  1888,  I.  712,  713.) 
In  1888  the  United  States,  on  learning  that  Sir  William  Wiseman,  H.  B. 
M.  S.  Caroluie,  had  taken  i)Ossession  of  Christmas,  Fanning,  and  Penryhn 
islands,  on  behalf  of  his  (iovermnent,  recalled  the  correspondence  of  1879 
in  relation  to  Christmas  Island,  and  reservetl  all  (piestions  that  might 
grow  out  of  the  i)ccupation.  (Mr.  Bayard,  Sec.  of  State,  to  Mr.  White, 
charge  at  London,  April  30,  1888,  For.  Rel.  1888,  I.  712.  )  Lord  Salisbury 
in  reph-  maintained  that  the  island  had  in  fact  been  abandoned  by  the 
Americiin  company  prior  to  April,  1882,  when  certain  British  subjects,  of 
Auckland,  finding  it  unoccupied,  took  possession  and  hoisted  the  British 
Hag:  that  they  afterwards  continued  in  possession:  and  that  Sir  W. 
Wi.seman  did  rot  take  formal  possession  till  he  had  '"satisfied  himself 
that  there  Avas  no  evidence  on  the  spot  of  the  islan<l  l)eing  still  claimed  by 
the  United  States  or  that  it  was  occupied  by  United  States  citizens." 
(Lord  Salisbury  to  Mr.  White,  charge  at  London,  May  24,  1888,  For.  Rel. 
1888,  I.  727-728. ) 

Clipperton  Island. — An  interest  was  claimed  in  the  island  by  the  Oceanic 
Phosphate  Company,  by  assignment  from  one  Frederick  W.  Parmien. 
Parmien  at  one  time  claimed  to  have  taken  possession  of  t!ie  island  for  the 
Stonington  Phosphate  Co.,  and  at  another  to  have  taken  po.«session  for 
himself  and  certain  other  persons.  The  Oceanic  Phosphate  Co.  was  dis- 
possesse<l  by  the  Mexican  authorities.  The  island  was  not  bonded,  nor 
was  it  in  the  list  of  guano  islands  appertaining  to  the  United  States. 
According  to  Lippincott's  Gazetteer,  it  is  claimed  by  Frame.  (  Mr.  Adee, 
Acting  Sec.  of  State,  to  Mr.  Chapman,  Sept.  22,  1893,  193  MS.  Dom.  Let. 
489.  See,  also,  for  a  review  of  the  facts,  Mr.  Adee,  Acting  Sec.  f)f  State, 
to  :Mr.  Thomas,  Aug.  13,  189,=),  204  MS.  Dom.  Let.  100.)  It  was  stated  l)y 
the  French  Aml)assador,  .Tan.  6,  1898,  that  his  Govermnent  claimed  the 
island  not  only  on  the  ground  of  discovery  by  a  French  captain  in  1709,  but 
also  on  that  of  the  taking  of  formal  possession  by  a  French  naval  officer 


SOVERKKiNTY:    ITS    ACQUISITION    AND    LOSS.  [§115. 

sent  out  for  X\w  j>uri)Ost'  in  1858.  (Mr.  Sherman,  8ec.  of  State,  to  Mr. 
I'crkins  Jan.  :.'7.  1898,  225  MS.  Doni.  Let.  17. )  June  28,  1898,  the  Depart- 
nu-nt  of  State,  in  resi>on.«e  to  a  request  of  the  French  eniba.«sy  for  its 
\  ii'ws  a."'  to  tlie  action  of  the  Mexican  authorities  in  refus^ing  to  permit  an 
American  company  to  remove  guano  from  the  island,  stated  that  if  the 
in(|uiry  related  to  tiie  ca.<e  of  the  Oceanic  Phosphate  Company,  it  had 
licen  held  that,  a.-^  the  company  had  not  complied  with  the  conditions 
pn'.«cril)e<l  by  sections  5570-5578  of  the  Revised  Statutes,  its  protest  against 
tlie  action  of  the  Mexican  authorities  could  not  lie  supportt'd.  (MS. 
Notes  to  France,  X.  509.) 

l-'.nniin'j  /.v/rfHf/.— See  For.  Rel.  1888,  I.  712,  727-728. 

Ft,r  Jsliiii<ls.  —  V>y  a  letter  of  May  1,  1899,  a  claim  to  three  islands,  known  as 
the  Fox  Islands,  situated  in  lat.  50°  58'  15'^  N.  and  long.  58°  41'  45"  W., 
to  lat.  50°  58'  15"  X.  and  long.  58°  45'  22"  W.,  was  filed  in  the  Depart- 
ment of  State,  on  the  part  of  William  J.  Hewitt,  Nelson  A.  Hewitt,  and 
William  F.  Lunt,  all  of  Newburyport,  Mass.,  as  di.«coverers,  who  gave 
notice  of  their  intention  to  take  possession  of  the  islands  in  the  name  of 
tlu-  Fnited  States  on  account  of  guano  depo.sits,  and  requested  advice  as  to 
tlu'  course  they  should  pursue.  They  were  duly  informed  as  to  the  steps 
necessary  to  be  taken  under  the  statutes  relating  to  guano  islands.  (Mr. 
Hay,  Sec.  of  State,  to  .Air.  Limt,  May  28,  1899,  2.37  MS.  Dom.  I^t.  265.) 

(inhijiiiiiox  IMniiil-<. — See,  as  t<j  an  alleged  discovery  of  guano  by  Mr.  Brissot, 
Mr.  Marcy,  Sec.  of  State,  to  :Mr.  White,  Aug.  14,  1854,  MS.  Inst.  Pxniador, 
1.  54. 

Until, I, „l  (,.r  .\o>r[n„<rs)  T-v/o//^/.— Discoverer,  Geo.  E.  Xetcher,  1842,  1848; 
jiossession  taken  in  May,  1857.  ( Mr.  Appleton,  Assist.  Sec.  of  State,  to  Mr. 
P.enson.  Nov.  1 1, 1858,  49  MS.  Dom.  Let.  349;  Mr.  Cridler,  3rd  Assist.  Sec.  of 
State,  to  Miss  Lewis,  May  7,  1898,  228  MS.  Dom.  Let.  320.)  The  American 
(iuano  t'o.  having  requested  the  revocation  of  a  certificate  of  the  Depart- 
ment of  State,  signed  by  the  Acting  Secretary  of  State,  Aug.  7,  1860, 
declaring  the  I'nited  States  Guano  Company  of  New  York  to  be  entitled 
to  rbe  guano  on  the  island,  the  Attorney-General  advised  that  the  Secre- 
tary of  State  had  "no  authority  to  comply  with  the  request,  or  to  issue  a 
new  i.roclamation  or  certificate  on  l>ehalf  of  the  American  Guano  Com- 
pany." but  that  the  latter  company  nuist  proceed  judicially  against  the 
rival  <iainiant.  i  Mr.  Seward,  Sec.  of  State,  to  Mr.  Marshall,  Nov.  14, 
isti.-,.  71  .MS.  I I.  Let.  119.  ) 

Jnr>:..  />/,o»/.~DiscMverer,  Michael  I'.aker,  1835.  (SeeH.  Report  307,  ;i5  Cong. 
1  sess..  ;is  to  tile  <|uality  of  the  guano.)  Discovery  at  subsequent  times 
alieg<-d  by  various  |)ersons.  including  one  Luca.«.  (Mr.  Black,  Sec.  of 
State,  to  Mr.  Marshall.  Dec  28,  ISfiO,  .53  MS.  Dom.  I^t.  .3.36.)  The  island 
was  visiteci  in  1S5S  by  the  b.  S.  S.  St.Mari/s,  Captain  Davis,  who  took 
formal  posM'.-si..n  in  the  name  of  the  Cnitetl  States.  (S.  Fx.  Doc.  11,  .35 
Coiit.'.  1  se.--.  I  Mr.  P.iack,  Secretary  of  State,  is.«ued  a  certificate  to  the 
.\merican  <  oiano  Conqiany  of  New  York  as  a.«signee  of  Baker,  March  2, 
1S()1.  i  .53  MS.  Dom.  Let.  447. )  "1  ler  Majesty's  ship  Cormorant,  in  1889, 
took  |ios.«e.<sioii  of  .larvis  wbiih  now  figures  on  all  mapsa.«  a  British  island, 
an>l  is  even  so  charted  by  our  own  Ilydrographic  Office.  Yet  as  recently 
as  .S'|>t.  16.  Is93,  the  island  was  ofiicially  rei)ort^d  a.s  'appertaining  to 
tiie  I'liited  States'  in  a  list  of  our  guano  islands  furnished  by  the  First 
('«>iiilitro]ler  of  the  Treasury  to  the  Hon.  Scott  Wike,  A.-^sistant  Secretary 
of  the  Treasury."  (  N.  Y.  Sun,  Nr.v.  16,  1900,  editorial  entitle<.i  "The 
Present  Status  of  the  Guano  Isles."  ) 


115.]  GUANO    ISLANDS.  575 

Johnson^ H  Tsla7ids. — The  circumstances  of  the  discovery  and  taking  possession 
of  Johnson  and  Agnes  islands,  which  lie  in  the  Pacific  Ocean,  in  lat.  16° 
46'  N.  and  long.  169°  17'  W.,  are  fully  detailed  in  an  opinion  of  Attorney- 
General  Black,  in  1859.  (9  Op.  364.)  The  discoverer  was  William  H. 
Parker,  who  also  gave  bond.  (Mr.  Payson,  Third  Assist.  Sec.  of  State, 
to  Messrs.  :\IcDaniel  and  Souther,  May  26,  1880,  133  MS.  Dom.  Let. 
132.)  See,  as  to  the  proposed  transfer  of  interests  to  an  alien  company, 
Mr.  Bayard,  Sec.  of  State,  to  Mr.  Parrott,  ^May  13,  1885,  supra,  under 
"Rights  of  the  discoverer  and  his  assigns."  See,  also,  Agnes  Island, 
supra.  It  seems  that  Johnson  Island  was  formally  annexed  to  Great 
Britain  by  H.  B.  M.  S.  Champion  in  1892,  and  that  no  representations 
were  made  to  the  British  Government  on  the  subject  at  the  time.  (Mr. 
Hay,  Sec.  of  State,  to  the  Sec.  of  the  Xavy,  Feb.  17,  1899,  235  MS.  Dom. 
Let.  44. ) 

Lobos  MmuU. — These  islands  were  visited  in  1822  by  Captain  Morrell,  an 
American  navigator,  who  i)ublished  in  1832  an  account  of  his  discovery  of 
guano  there.  They  lie  from  twenty  to  thirty  miles  from  the  coast  of  Peru. 
In  a  controversy  with  the  government  of  that  country  in  1852,  as  to  juris- 
diction over  them,  Mr.  Webster  argued  that,  as  the  ordinary  jurisdiction 
of  a  nation  extends  only  three  marine  miles  from  the  shore,  the  islands 
could  not  he  claimed  by  Peru  on  the  simple  ground  of  contiguity,  and 
that  her  title  must  depend  upon  the  answer  made  to  the  following  ques- 
tion: "The  Lobos  Islands  lying  in  the  open  ocean,  so  far  from  any  conti- 
nental possessions  of  Peru  as  not  to  belong  to  that  country  by  the  law  of 
proximity  or  adjacent  position,  has  the  government  of  that  country  exer- 
cised such  unequivocal  acts  of  absolute  sovereignty  and  ownership  over 
them  as  to  give  to  her  a  right  to  their  exclusive  possession,  as  against  the 
United  States  and  tfteir  citizens,  by  the  law  of  undisputed  possession?"  (Mr. 
Webster,  Sec.  of  State,  to  Mr.  Osma,  Peruvian  Minister,  Aug.  21,  1852, 
S.  Ex.  Doc.  109,  32  Cong.  1  sess.  12.  See,  also,  Mr.  Webster,  Sec.  of 
State,  to  Mr.  Clay,  Aug.  30,  1852,  S.  Bep.  397,  34  Cong.  3  sess.  57;  Cur- 
tis' Life  of  Webster,  II.  652.)  A  despatch  of  Mr.  J.  Randolph  Clay, 
X'nited  States  minister  at  Lima,  of  June  24,  1852,  conveying  information 
as  to  Peru's  title,  caused  the  countermanding  of  the  order  which  had 
previously  been  given  to  the  American  naval  forces  to  protect  vessels  in 
taking  cargoes  from  the  islands.  (Mr.  Conrad,  Acting  Sec.  of  State,  to 
Mr.  Clay,  Sept.  21,  1852,  S.  Rep.  397,  34  Cong.  3  sess.  59.)  A  full  report 
was  made  by  Mr.  Clay,  Oct.  25,  1852,  showing  the  long-continued  exercise 
of  jurisdiction  by  Peru  (S.  Rep.  397,  34  Cong.  3  sess.  106-164);  and  the 
United  States  afterwards  withdrew  ' '  unreservedly ' '  all  objections  to  Peru's 
title.  (Mr.  Everett,  Sec.  of  State,  to  Mr.  Osma,  Nov.  16,  1852,  S.  Rep. 
397,  34  Cong.  3  sess.  169,  172.  Annexed  to  this  report,  and  printed  as 
part  of  it  (pp.  27-283),  is  a  message  of  President  Pierce  to  the  Senate  of 
April  29,  1856,  which  was  not  printed  at  that  time.)  As  to  the  claims  of 
Mr.  A.  G.  Benstin,  growing  out  of  the  transaction,  see  the  report  of  Mr 
Wade,  from  the  Committee  of  Claims,  Feb.  18,  1857,  S.  Rep.  397,  34  Cong. 
3se.ss. ;  and  Int.  Arbitrations,  III.  2390-2396.  The  restrictions  of  Peru  on 
the  sale  of  guano  are  discussed  in  H.  Kx.  Doc.  70,  33  Cong.  1  sess.  They 
are  also  referred  to  in  the  cases  of  the  "(ieorgiana"  and  "Lizzie  Thomp- 
son," American  ves.«els  which  were  seized  at  the  Chinca  Islands.  These 
casi's,  iiowever,  did  not  involve  the  cjuestion  of  title  to  those  islands,  but 
merely  the  right  of  Vivanco's  adherents,  as  alleged  de  facto  authorities  of 
Peru,  to  dispose  of  the  guano.     (Int.  Arbitrations,  II.  1593;  S.  Ex.  Doc. 


57()  sovkhkkjnty:  its  acquisition  and  loss.  [§115. 

(>;».  :>.">  Ctui^.  1  si's8. ;  S.  Kx.  Dor.  'Jo,  80  Cong.  2se8.«. ;  Br.  and  For.  State 
PajHTs,  XXXI.  10i>7.  See,  also,  report  of  Mr.  Seward,  Sec.  of  State, 
March,  ;>0,  IStll,  MS.  Report  Book.) 

Miilil,  II  Is/diid.  —  Discoverer,  (ieo.  K.  Netcher.  His  assignee,  the  United  States 
(iiianoCo.,  furnished  an  approved  bond.  (Mr.  Seward,  Sec.  of  State,  to 
.Mr.  Henson,  A].ril  :{(»,  IStUi,  7H  :\IS.  Doni.  Let.  11) 

.»/'//■<•(/.<  I.tliiii'l. — In  lSS9the  Department  of  State  received,  through  the  .\nieri- 
can  legation  at  Ilonoluhi,  a  notice,  signed  by  Andrew  A.  Ko.sehiIl,  an 
.\iiierican  shi])niaster,  and  atlidavits  of  two  witnesses,  stating  that  lie  had 
on  Juni'  29,  ISSi),  taken  posses.sion  of  and  raised  the  American  flag  over 
this  island,  in  lat.  24°  U'  N.  and  long.  154°  0^  K.  The  papers  were 
acknowU'dged  as  "tending  to  show"  a  desire  to  make  a  claim  under 
the  <iuano  Island  act,  and  attention  was  called  to  its  conditions,  includ- 
ing proof  of  previous  nonoccupation  and  the  giving  of  bond.  The  next 
evidences  oi-  claim  were  received  in  February,  1902,  consisting  of  further 
atlidavits,  two  of  them  made  by  the  claimant,  at  Honolulu,  June  22, 
bS99,  and  Jan.  20,  1902.  The  first  alleged  the  taking  possession  in  1889 
and  previous  nonoccujiation.  The  second  stated  that  affiant,  l>esides 
posting  on  the  island  in  1889  a  copy  of  his  notice  of  occupation,  built  there 
a  small  nativi'  house,  and,  intending  to  return  the  next  year,  left  behind 
with  proper  .'^upi)lies  a  man  and  wife,  who  were  taken  off  eleven  months 
later  by  a  passing  ve.^sel;  that  he  was  una})le  to  revisit  the  island  till  1895; 
that  he  again  went  ashore  in  189t)  and  saw  the  evidences  still  there  of 
his  occupation  in  1889,  but  owing  to  the  weather  was  unable  to  anchor. 
Finally,  he  declared  that  he  had  been  unal)le  to  obtain  capital  to  work 
the  guatio  dejjosits  or  to  give  V>ond,  but  was  now  prepared  to  do  l)oth; 
and  he  prayed  that  the  island  might  be  treated  as  appertaining  to  the 
I'nited  States,  in  conformity  with  the  act  of  Congress.  He  subsequently 
.^^eiit  on  a  bond.  (Mr.  Stevens,  min.  to  Hawaii,  to  ]Mr.  Blaine,  Sec.  of 
State,  Oct.  14,  1889,  2»}  MS.  Dispatches  from  Hawaii;  Mr.  Blaine,  Sec.  of 
State,  to  Mr.  Stevens,  min.  to  Hawaii,  Jan.  10,  1890,  ]\IS.  Inst.  Hawaii, 
HI.  108;  Mr.  Perkins,  'SI.  C,  to  'Sir.  Hay,  Sec.  of  State,  Dec.  24,  1901,  MS. 
Misc.  Let.;  .Mr.  Hill,  Acting  Sec.  of  State,  to  Mr.  Perkins,  M.  C,  Jan.  2, 
1902,  2.")H  MS.  Dom.  Let.  557:  :Mr.  Perkins  to  Sec.  of  State,  Feb.  3,  1902, 
MS.  Misc.  Let.:  Sec.  of  State  to  Mr.  Perkins,  Feb.  8,  1902,  257  MS.  Dom. 
bet.  454:  Sec.  of  Treasury  to  Sec.  of  State,  June  2,  1902,  MS.  Misc.  Let.) 
Otliciai  comimniications  from  the  Japanese  ( Jovernnient  state  that  the 
usufruct  of  the  island  for  ten  years,  from  Sept.  1,  1898,  has  been  granted 
to  a  Japane.'Je  subject.  This  grant  followed  a  public  notification  l)y  the 
Japanese  (iovernment  July  24,  1898,  that  the  islan<l  belonged  to  Japan. 
Cajttain  Roschill's  bond  was  tiled  in  1902.  The  United  States  " has  not 
claime(l  title  to  or  asserted  sovereignty  over  the  island,  and  such  aeon- 
elusion  as  it  may  reach  touching  a  merely  jurisdictional  claim  would 
necessarily  be  limited  by  the  conditions  fixed  in  the  (inano  act.«."  (Mr. 
Adee,  Acting  Sec.  of  State,  to  Mr.  Perkins,  M.  C.,  Sept.  5,  1902,  MSS., 
Dept.  of  State.  1 

MniKl's.  l/ix  {  1,11.^  .\[>, IK/IS,  Till'  Moil /:.'<). — Messrs.  John  K.  (iowen  and  Franklin 
K.  Copeland,  citizens  of  the  ('nite(l  States,  discovered  early  in  1854  a  guano 
dej.osit  in  the  group  ami  proceeded  to  work  it.  Late  in  1855  the 
Venezuelan  authorities,  having  previously  notified  them  to  quit,  expelled 
them  and  took  temporary  possession  of  their  property.  The  sovereignty 
of  the  islantls  was  contested  by  Colomlua  and  Venezuela.  Without  regard 
to  the  merits  of  this  contest,  an  award  was  subsequently  made  in  favor  of 


115.]  GUANO    ISLANDS.  577 

Messrs.  Gowen  andCopeland,  against  Venezuela,  for  $20,000  damages,  on 
the  ground  that  as  the  islands,  which  were  vacant  and  sterile,  and  lay  far 
out  to  sea,  were,  at  the  time  of  the  occupation,  apparently  "no  man's 
land,"  the  claimants  poss<>sse  1  "an  equity  to  be  re:..i'oursed  for  their  out- 
lay in  taking  possession  of  what  was  apparently  derelict  and  abandoned 
property."  (Commission  under  the  treaty  l)etween  the  United  States  and 
Venezuela  of  Dec.  5,  1885,  Int.  Arbitrations,  IV.  83o4-33o9.) 

Morant  Ket/K. — J.  \V.  Jennett  claimed.  May  23,  1869,  to  have  discovered  and 
taken  possession  of  the  islands  in  186fi.  No  action  was  taken  V)y  the 
Department  of  State  bej'ond  acknowledging  the  receipt  of  these  and  certain 
subsequent  papers,  as  to  the  effect  of  which  its  opinion  was  reserved.  ( Mr. 
Evarts,  Sec.  of  State,  to  Mr.  Sherman,  Mar.  20,  1878,  122  MS.  Dom.  Let. 
228;  Mr.  Hunter,  Acting  Sec.  of  State,  to  Mr.  Rice,  Sept.  30,  1879,  130 
id.  92. )  The  islands  appear  to  have  been  annexed  by  Great  Britain  to 
Jamaica.  (Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Lamar,  April  26, 
1882,  141  MS.  Dom.  Let.  615;  ]Mr.  Porter,  Assist.  Sec.  of  State,  to  Messrs. 
Coudert,  May  28,  1885,  155  id.  518.) 

Mosfjnito  Caijx. — No  i-laim  has  l>een  made  by  the  United  States  to  these  islands, 
which  lie  off  the  Mos(]uito  coast  (Nicaragua).  (Mr.  Uhl,  Acting  Sec.  of 
State,  to  Mr.  Lambert,  Feb.  27,  1895,  200  MS.  Dom.  Let.  691.  See  also 
Mr.  Marcy,  Sec.  of  State,  to  Messrs.  Thompson  etal.,  Dec.  27,  1853,  42 
MS.  Dom.  Let.  124. ) 

Nantucket,  or  Xfir  Xantnrkrl,  Island. — See  Baker's  Island. 

Xarassd  If<l(ind. — Peter  Duncan,  Nov.  18,  1857,  alleged  discovery  on  the  1st  of 
the  preceding  July  and  taking  pos.session  on  the  19th  (jf  September.  A 
certificate  was  issued  by  Mr.  Cass,  as  Secretary  of  State,  Dec.  8,  1859,  and 
protection  was  given,  against  the  protest  of  Hayti,  to  the  citizens  of  the 
United  States  engaged  in  the  removal  of  the  guano.  (Jones  '•.  United 
States  (1890),  137  U.  S.  202;  S.  Ex.  Doc.  37,  36  Cong.  1  sess. )  The  United 
States  denied  the  claim  of  Hayti  on  the  ground  that  the  latter  had  never 
established  title  to  the  island  either  by  occupying  it  or  by  a.sserting  and 
maintaining  jurisdiction  over  it.  (Mr.  Fish,  Sec.  of  State,  to  Mr.  Pre.«ton, 
Dec.  31, 1870,  June  10,  1873,  MS.  Notes  to  Hayti,  I.  124, 153. )  In  1889  serious 
riots  occurred  on  the  island,  and  several  persons  were  killed.  At  the  request 
of  the  United  States  consul  at  Kingston,  Jamaica,  a  British  war  ship  went 
to  the  scene.  (Mr.  Adee,  Acting  Sec,  to  Mr.  Lincoln,  Sept.  19,  1889,  ]\IS. 
Inst.  Gr.  Br.,  XXIX.  127.  See  President  Harrison's  Third  Annual  Mes- 
sage, Dec.  9,  1891;  ^Ir.  Adee,  Second  Assist.  Sec.  of  State,  to  Gen.  Harri- 
son, Dec.  3,  1897,  223  MS.  Dom.  Let.  141.)  Complaint  was  made  by  the 
Si)anish  minister,  Sept.  4,  1896,  that  the  steamer  T)aH7U/t:9)^  had  taken  on 
lK)ard  men,  arms,  and  munitions  of  war  at  the  island  and  landed  them  in 
Cuba  in  aid  of  the  insurgents.  (Mr.  Rockhill,  Acting  Sec.  of  State,  to  the 
Attorney -(ieneral,  Sept.  10,  1896,  212  MS.  Dom.  Let.  432.  The  men, 
arms,  and  anununition  were  shipped  on  the  steamer  Laurada  at  Philadel- 
phia, and  were  transferred  to  the  Dauntless  at  Navassa.  It  was  in  connec- 
tion with  this  transaction  that  Jolm  D.  Hart  was  afterwards  convicted  of 
violating,  at  Philadelphia,  section  5286  of  the  Revised  Statutes  of  the 
United  States,  against  unlawful  expeditions.)  It  was  reported,  in  1898, 
that  the  island  was  seized  and  held  by  Haytians  or  Dominicans,  who  pre- 
vented a  rei)resentative  of  the  Navassa  Phosphate  Co.  from  landing  and 
declared  that  the  island  no  longer  belonged  to  the  United  States.  (Dis- 
patch of  Mr.  Dent,  U.  S.  consul  at  Kingston,  July  10,  1898,  MSS.  Dept.  of 

H.  Doc.  651 :^T 


578  sovereignty:  its  acquisition  and  loss.  [§115. 

State.  ;it)  MS.  Cons.  T.ct..  Kinspton.  See  the  New  York  Times,  May  31, 
IW!,  a.-^  to  the  ca.«e  <>f  four  men  said  to  have  been  practically  abandoned 
on  the  island  in  consequence  of  differences  l>etween  persons  who  pur- 
chase<l  from  a  receiver  the  rights  of  the  Xava^sa  Phosphate  Co.)  The 
Cnited  States  had  not  aliandoned  the  island.  (Mr.  Moore,  A&«ist.  Sec.  of 
State,  to  Mr.  Fowler.  July  9.  1S98,  2.30  MS.  Dom.  Let.  107.  See,  also,  Mr. 
Hay,  Sec.  of  State,  to  Mr.  Fowler,  April  lo,  1899,  236  MS.  Dom.  Let.  354; 
Mr.  At  lee.  2d  .\ssist.  See.  of  State,  to  Messrs.  Musgrave,  Aug.  3,  1900,  246 
MS.  Dom.  Let.  682.) 

Ptdro  Knjs. — Di.«coverer,  .1.  W.  Jennett,  1869;  he  filed  a  bond  and  received  a 
certificate.  (Mr.  Fish,  Sec.  of  State,  to  Mrs.  Stevens,  May  10,  1870,  84 
MS.  Dom.  Let.  426. )  In  1878  the  Cnited  States  consul  reported  that 
the  British  claimed  a  prior  title.  March  14,  1882,  the  British  minister  noti- 
fied the  Department  of  State  that  the  islands  had  been  formally  annexed  to 
Jamaica  on  the  strength  of  po.«se.«sion  taken  "on  l^ehalf  of  Her  Majesty  in 
the  years  1862  ami  1863.'"  (Mr.  Frelinghuysen,  Sec.  of  State,  to  Treasury, 
Dec.  o,  1884,  153  MS.  Dom.  I^t.  366;  Mr.  Porter,  Assist.  Sec.  of  State,  to 
Messrs.  Coudert,  May  28,  1885,  155  id.,  518;  Mr.  Bayard,  Sec.  of  State,  to 
Treasury,  May  7,  1887.  164  MS.  Dom.  Let.  114.) 

Pitril  IMaiid. — Discoverer,  J.  W.  Jennett,  to  whom  a  certificate  was  issued. 
'  Mr.  Fish,  Sec.  of  State,  to  Mrs.  Stevens,  :May  10,  1870,  84  MS.  Dom.  I^t. 
426. ) 

Pliirhe  Ixl'iml. — Claimed  by  the  American  Guano  Co.  of  Xew  York,  whidi,  in 
January,  1877.  state<l  that  it  had  dispatched  a  vessel  to  the  island  with 
men  and  materials.  i^Ir.  Hunter,  Acting  Sec.  of  State,  to  Mr.  Russell, 
July  3,  1880,  1.33  :\IS.  Dom.  Let.  491.  I 

(^uitu  Stri'iin. — Discoverer,  J.  W.  Jennett;  memorial  filed,  1869;  bond  filed, 
Nov.  22,  and  approved  Nov.  26,  1869.  A  certificate  was  duly  is.«ued  (Mr. 
Fish.  Sec.  of  State,  to  Mrs.  Stevens,  May  10,  1870,  84  MS.  Dom.  I.et.  426), 
and  the  island  was  included  in  a  list  published  by  the  Treasury,  Oct.  12, 
1.S71.  The  Colondiian  (Government,  Dec.  8,  1890,  inquired  whether  the 
I'nited  States  had  authorized  Jennett  to  remove  guano  from  the  island, 
which  was.  it  declared,  notoriously  the  property  of  Colombia.  Mr.  Blaine, 
Secretary  of  State,  Jan.  19,  1891,  answered  in  the  affirmative,  and  ques- 
tioned Colombia's  title.  (MS.  Notes  to  Colombia,  VII.  178.)  The  Colom- 
bian <iovernment  ilaimeil  that  "Roncadorand  Quitasueno  [Quito Sereno] 
form  part  of  the  archii)elago  of  Providencia  l)elonging  to  the  Republic," 
as  successor  of  S]>ain:  and  that  the  inhabitants  of  the  neighlntring  islands 
use  theui  ••for  stations  in  certain  periods  of  the  year  for  the  fishery  of 
tortoise  sliells  and  to  cultivate  as  much  as  possible  that  part  of  the  terri- 
tory." '  Kep..rt  of  tlie  (Vilombian  min.  of  for.  aff.,  1894,  For.  Rel.  1894, 
I'ts.  ) 

Itnijihs  I.</ui,'l.^  I  !,os  Ko^'ues  I.— Citizens  of  the  Cnited  States  claimed  to 
liave  dis<<i\er(Ml  L'uanooii  the  islands,  Init  tiieir claim  of  title  was  not  con- 
sidereil  Millii  i.-iit  to  warrant  oHicial  recognition  under  the  law  on  the 
subject.  I  Mr.  Fish.  Sec.  of  State,  to  Messrs.  Grange  I't  Co.,  June  10,  1871, 
s'.i  MS.  Doiii.  I.(  t.  52S.  I 

/.'«/»r,„/.,/ .  -The  lacts  in  regard  to  the  <liscovery  and  l>onding  of  the  island  are 
the  same  as  in  the  case  of  Quito  Sereno.  in  the  diplomatic  correspondence 
concerniiii:  which  Roncador  is  incluiled.  (Quito  Sereno,  supra.  )  A  cer- 
titirat.-  ..r  pnx'laination  was  allej;ed  to  have  been  issued  in  the  ca.«e  of 
Roncador  by  Mr.  Fish,  but  m^  record  of  its  issuance  seems  to  have  been 


115.]  GUANO    ISLANDS.  579 

made  in  the  Department  of  State.  (Mr.  Moore,  Third  Assist.  Sec,  to  Mr. 
Jennett,  Nov.  19,  1889,  175  MS.  Doni.  Let.  348.) 

St.  Paul's  Rocks. — No  notice  appears  to  have  been  filed  of  the  discovery  of 
thase  islands,  which  lie  in  the  Atlantic  Ocean  near  the  equator  in  about 
30  W.  long.  (Mr.  Uhl,  Assist.  Sec.  of  State,  to  Mr.  Read,  Nov.  15,  1893, 
194  MS.  Dom.  Let.  270.) 

San  Andreas. — The  opinion  was  expressed  that  the  Department  would  not 
be  warranted  in  further  pressing  a  complaint  against  the  Colombian  Gov- 
ernment in  respect  of  this  island.  (Mr.  (iresham.  Sec.  of  State,  to  Mr. 
Winter,  March  28,  1895,  201  3IS.  Dom.  Let.  321.) 

Serrannilla  Keys. — Discoverer,  James  W.  Jennett,  Dec.  1866;  declaration  of 
discovery  filed.  May  24,  1869;  bonds  given,  Sept.  8,  1879,  and  Sept.  13, 
1880.  Various  assignments  were  made.  (Mr.  Brown,  chief  clerk,  to  Mr. 
Neymann,  Jan.  24,  1879,  126  MS.  Dom.  Let.  230;  Mr.  Hunter,  Acting 
Sec,  to  Mr.  Rice,  Sept.  30,  1879,  130  id.  92;  Mr.  Frelinghuysen,  Sec.  of 
State,  to  Mr.  Ransom,  Dec.  26,  1884,  153  id.  511;  Mr.  Porter,  Assist.  Sec, 
to  Mr.  Saunders,  April  2,  1885,  154  id.  658;  Mr.  Day,  Assist.  Sec.  of  State, 
to  Mr.  Hildebrand,  Nov.  16,  1897,  222  id.  460. ) 

Serrano  Keys. — J.  AV.  Jennett,  by  letters  of  Aug.  13  and  29,  1868,  asserted  a 
claim  under  the  act  of  1856  to  the  Island  of  Serrano  and  certain  adjacent 
keys.  The  minister  resident  of  Nicaragua  and  Honduras  protested  against 
the  occupation  of  the  islands,  on  the  ground  that  they  were  within  the 
.  jurisdiction  of  and  occupied  by  Honduras.  ' '  This  claim  on  the  part  of  Hon- 
duras is  now  under  examination  by  this  Department.  No  certificate  can 
be  issued  to  you  by  this  Department  until  the  merits  of  that  claim  of  the 
Republic  of  Honduras  are  settled."  (]Mr.  Seward,  Sec.  of  State,  to  Mr. 
Jennett,  Sept.  14,  1868,  79  MS.  Dom.  Let.  312.)  A  certificate  was  issued 
to  Jennett,  Dec.  11,  1868.  (Mr.  Evarts,  Sec.  of  State,  to  ]\Ir.  Russell, 
April  5,  1878,  122  3IS.  Dom.  Let.  384.)  His  title  "is  apparently  good 
and  he  or  his  legitimate  assignee  seems  to  be  entitled  to  the  protection  of 
the  L'nited  States  against  the  interference  of  any  foreign  government." 
He  appeared  to  have  made  assignments  of  his  interest.  (Mr.  Fish,  Sec. 
of  State,  to  :\Irs.  Stevens,  June  21,  1869,  81  MS.  Dom.  Let.  289.) 

Sombrero  Island. — "After  careful  investigation  of  the  records  and  files  of  this 
Department  nothing  has  been  discovered  to  show  that  the  title  of  citizens 
(if  the  United  States  to  the  guano  on  that  island  was  ever  recognized  bj^ 
the  President."  (Mr.  Seward,  Sec.  of  State,  to  Mr.  McCulloch,  Aug.  14, 
1868,  79  MS.  Dom.  Let.  204.  See,  also,  :Mr.  Seward  to  ]Mr.  Welles,  Sept. 
10,  1861,  55  id.  63.) 

Snan  Islands. — Tlie  "proof  filed  by  the  New  York  Guano  Company,  to  secure 
the  protection  of  the  <TOvernment  for  their  possession"  was  "considered 
sufficient  to  authorize  the  <  iovernment  to  extend  the  protection  asked  for, 
under  the  act  of  August  18,  1856."  (Mr.  Seward,  Sec  of  State,  to  Mr. 
Parish,  March  23,  1S63,  60  MS.  Dom.  Let.  68.)  As  the  result  of  ai^sign- 
ments,  the  rights  under  the  act  in  1894  were  claimed  by  the  Pacific  Guano 
Co.  (Mr.  Uhl,  Acting  Sec.  of  State,  to  :\rr.  Brash,  Feb.  27,  1894, 195  MS. 
Dom.  Let.  590.  See,  as  to  the  status  of  the  islands,  Mr.  Gresham,  Sec  of 
State,  to  Mr.  Brash,  Oct.  29,  1894,  199  id.  266.  The  papers  relating  to 
the  islands  are  enumerated  in  Mr.  Hill,  Assist.  Sec.  of  State,  to  ISIr.  Torrey, 
Nov.  19,  1898,  232  MS.  Dom.  Let.  608.  See,  also,  Mr.  Hill,  Assist.  Sec 
of  State,  to  Mr.  Jewett,  Feb.  17,  1899,  235  MS.  Dom.  Let.  35.) 


5S0  sovereignty:  its  acquisition  and  loss.  [§116. 

Triiiiiiih  l.<l<ui(l.''. — Tlie.«e  inlands  are  three  in  number — two  of  them  coneti- 
tiitin<r  the  Kastern  Triangle,  and  the  other  the  Western.  See  Western 
Triaiiirlt'. 

ViinriUit  K'l/. — JuHus  K.  Sdiultz  made  a  flaim  as  discoverer;  Imt,  a.«  the  key 
\\a.»i  claimed  by  both  Nicaragua  and  Hon<hira.«,  it  was  not  recognized  as 
apiHTtainin^'  to  tlie  United  States.  (  For.  Kel.  1888,  I.  119,  182.)  Neither 
Nicara>rua  nor  Honduras,  however,  seemed  dispose<l  to  disturb  Mr.  Schultz' 
I.os.-.essinii.  (Mr.  Kives,  Assist.  Sec.  of  State,  to  Mr.  Moale,  Jan.  25,  1888, 
lt)t>  MS.  Dom.  U-t.  671;  Dec.  12,  1888,  171  id.  71.) 

Wrstirti  'friiinijlt. — Discoverer,  J.  W.  Jeimett,  Feb.,  1879;  declaration,  Sept. 
1,  1S79;  iMind.  Sept.  l.">,  ISSO.  (Mr.  Gresham,  Sec.  of  State,  to  Mr.  Gordon, 
<  >ct.  19,  1S9;^.  194  .MS.  Dom.  l^et.  57.)  Assignments  were  n)ade.  (Mr. 
Pay.'^on,  Third  A.-sist.  Sec.  of  State,  to  Mr.  Lightenhouse,  Jan.  23,  1880, 
131  .MS.  I)(.m.  Let.  342;  Mr.  Hay,  Assist.  Sec,  to  Mr.  Olburn,  March  2, 
ISSO,  132  id.  46.)  The  island  wa,«  afterwards  stricken  from  the  list. 
(.Mr.  rhl,  Acting  Sec.  of  State,  to  Treasury,  Oct.  3,  1894,  199  MS.  Dom. 
Let.  49;  to  Mr.  Brash,  Oct.  15,  1S94,  id.  147;  Mr.  Gresham,  Sec.  of  State, 
to  Treasury.  Nov.  17,  1S94,  i.L  437.) 

Wixiihi  Maud. — No  notice  of  discovery  seems  ever  to  have  been  filed.  (Mr. 
Adee.  Second  Assi.«t.  Sec.  of  State,  to  Mr.  Long,  Nov.  18,  1887,  166  MS. 
Dom.  Let.  179.  ) 

14.   I'koi'osai.s  ok  Annk.\.\tion. 

(1  I    (■  A.N  A  DA. 

S  lib. 

Tho  .\rti(le>  of  Confederutioii.  17~s,  provided:  "Article  XI. 
C"iin;id;i  ;i<-c«'dino'  to  this  Confederation,  und  joining  in  the  measures 
of  the  Tnited  States,  shall  be  admitted  into  and  entitled  to  all  the 
advantaofes  of  this  union:  but  no  other  colony  shall  be  admitted  into 
the  same,  unless  such  admission  be  agreed  to  b}'  nine  States." 

The  te.xt  of  the  Articles  of  Confederation  had  been  in  existence,  in 
its  final  form,  nejirly  three  months  (since  Nov.  15,  1777)  when  the 
treaty  of  alliance  with  France  of  Feb.  ♦'».  1778,  was  signed.  By  this 
treaty  it  was  stipulated  (Art.  V.)  that,  if  the  United  States  should 
think  tit  to  attempt  the  i-eduction  of  the  British  power  remaining  in 
the  northern  ])aits  of  America,  or  the  islands  of  Bermudas,  those 
coimtrics  or  island.-,  in  cust^  of  succe.ss,  should  be  confederated  with 
or  dependent  n\)<n\  the  Cnitcd  States:  and  the  King  of  France 
(Ai't.  \  I.)  renounced  foi-ever  the  possession  of  the  Bernuidas.  as  well 
as  of  any  territory  on  the  North  American  continent  then  or  previ- 
ously belonging_  to  (ii'eat  Britain.  He  reserved,  however  (Art.  VII.), 
the  I'ight  to  attack  and  ol»tain  possession  of  any  of  the  islands  in  or 
neai-  the  (iidf  of  Mexico  which  were  then  under  the  British  power. 

On  .luly  2.  jsbb.  the  chairman  of  the  Committee  on  Foreign  Affairs 
of  the  House  of  Kcpre.-<entati ve.'^  reported  a  bill  to  the  effect,  that  when 
till'  I)ej)artnient  of  State  should  ))e  ofKcially  informed  that  (Jreat  Brit- 
ian  and  the  >everal  British  provinces  in  Canada  accepted  the  proposi- 


§  116.]  PROPOSALS    OF    ANNEXATION.  581 

tion  of  annexation,  the  President  should  dechire  by  proclamation  that 
Nova  Scotia,  New  Brunswick,  Lower  Canada,  Upi)er  Canada,  and  the 
territories  of  Selkirk,  of  Sasketchewan,  and  of  Colunil)ia  should  he 
admitted  into  the  I'nited  Stativs  as  States  and  Territories,"  This  reso- 
lution was  not  acted  on,  but  on  March  27,  1807,  a  resolution  from  the 
Committee  on  Foreign  Affairs  was  passed  in  the  House  without  oppo- 
sition, to  the  effect  that  the  people  of  the  United  Stiites  regarded  with 
extreme  solicitude  the  confederation  proposed  on  the  northern  frontier 
without  the  assent  of  the  people  of  the  provinces  to  be  confederated, 
such  a  measure  being  likeh'  to  increase  the  embarrassment  already 
existing  between  Great  Britain  and  the  United  States.^ 

'"I  enclose  a  cop}' of  a  paper  purporting  to  be  a  memorial  from 
inhabitants  of  British  Columbia,  urging  the  transfer  of  that  colon}'  to 
the  United  States,  which  has  ])ecn  presented  to  the  President,  and 
which  has  already  l>een  printed  in  the  public  papers  of  this  cit\' 
and  elsewhere  through  the  agency  of  the  parties  charged  with  its 
presentation. 

"  In  an  informal  conversation  with  Mr.  Thornton,  he  referred  to 
this  petition,  and  I  showed  him  the  original.  As  Mr.  Thornton  had 
very  frequently  and  \ery  openly,  not  onl}-  to  me,  but  in  the  presence 
of  others,  expressed  the  willingness  of  the  British  Government  to  ter- 
minate its  political  connection  with  the  provinces  on  this  continent, 
whenever  it  should  appear  that  a  separation  was  desired  by  its  present 
dependencies,  I  took  the  occasion  to  suggest  that  possibly  the  desire 
indicated  by  these  petitioners,  taken  in  connection  with  the  troubles 
in  the  Ked  River  or  Selkirk  settlement,  and  the  strong  opposition  to 
confederation  manifested  in  the  maritime  provinces,  might  induce  his 
(lovernment  to  consider  whether  the  time  was  not  near  when  the 
future  relation  of  the  colonies  to  Great  Britain  must  ])e  contemplated 
with  reference  to  these  manifestations  of  restlessness,  and  to  some 
extent  of  dissatisfaction  with  their  present  condition. 

"I  need  not,  however,  multiply  the  arguments  wliicli  tend  to  the 
conviction  that  at  no  very  distant  day  the  question  of  the  independence 
of  this  territory  must  be  practical  and  pressing. 

"If  Great  Britain  will  assent  to  such  ind(^pendence,  the  danger  of 
a  strife  upon  our  borders,  and  of  an  Indian  war,  originating  iii -the 
British  possessions,  l)ut  not  recognizing  the  boundary  which  that 
(Jovernment  and  tlie  United  States  have  accepted,  will  ))e  avoided. 

"■  You  will  exercise  your  discretion  in  reference  to  this  (piestion,  avail- 
ing yourself  of  ever}'  opportunity  to  obtain  information  as  to  the  real 
sentiments  of  the  British  (jovernment  on  the  question  of  the  sepa- 
ration of  the  colonies  from  the  mother  country,  and  when  opportunity 


«Amer.  Ann.  Encyclop.  1866,  7S. 

^Anier.  Ann.  f^ncyclop.  1S()7,  l.*7');  l*  Lawrence  Cum.  sur  droit  int.  313. 


582         sovkreignty:  its  acquisition  and  loss.     [§§  117-118. 

ortVis   iiulicatinj:-   tlu'   facts   which   seem   to   make   such    separation  a 
necessity." 

Mr.  Fisli,  Si'c.  of  State,  to  :Mr.  Motley,  iniii.  to  England,  Jan.  14,  1870,  MS. 
Inst.   (ir.  I'.rit.  XXII.  KW. 

During  ISiKt  and  ISTO  the  (|ue.<tion  of  the  cession  of  Canada  to  the  Ignited 
Statt's  in  connection  with  the  settlement  of  the  Alabama  claims  was  fre- 
(jneiitlv  di.<cusse<l  between  Mr.  Fish  and  Sir  Edward  Thornton,  then 
liritish  minister  at  Wasliington.  An  acconnt  of  their  negotiations  is 
givi-n  by  Mr.  Charles  Francis  Adams  in  his  essay  on  the  treaty  of  AVash- 
ington,  an  essay  filled  with  interesting  and  original  liistorical  matter 
touching  the  subject  to  which  it  relates.  (Adams,  Lee  at  Appomattox 
and  other  I'ajiers,  15(1.)  ]\Ir.  Adams  adverts,  in  the  course  of  his  essay, 
to  the  great  change  in  sentiment  that  has  taken  place  in  England  since 
1S70  in  regard  to  the  colonies,  the  feeling  f)f  apparent  indifference  that 
once  j)revailed  having  given  way  to  the  conviction  that  the  colonies  are 
'"both  the  glory  and  the  strength"  of  the  F'.mpire. 

(2)    SALVADOR. 

§  IIT. 

''The  pi'ovince  of  St.  Salvadof.  onc^  of  the  constituent  States  of  the 
Hepiil)lic  of  (xiuitemahi,  l>v  a  soUmuu  decree  of  its  Congress,  freely 
cliosen  by  the  peopk;,  did  on  the  5th  day  of  December,  1822,  propose  its 
annt'xation  to  our  own  Union,  as  one  of  the  United  States.  This  measure 
was  a(lo[)t(Ml  as  an  expedient  for  escaping-  from  the  oppression  with 
wliicli  th(>v  w(>re  menaced,  of  l)eino'  annexed  by  force  to  the  Mexican 
Empire  wliih'  under  the  oovernment  of  Yturbide,  For  the  purpose 
of  cai-rying  it  into  ett'ect  three  commissioners  were  despatched  with 
fidl  powers,  who  came  to  the  U^nited  States,  and  in  the  beginning  of 
September.  iS-I'A.  repaired  to  the  city  of  Washington.  In  the  interval 
between  the  time  of  their  api)ointment  and  that  of  their  arrival  here  a 
I'cvolution  in  Mexico  had  overthrown  the  government  of  Yturbide, 
and  the  Hcpiibjican  rulers  who  succeeded  to  his  power  acknowledged 
the  right  of  tiie  jx'oplc  of  (luatcMuala  to  institute  a  government  for 
themselves,  iiiid  witiidrcw  all  claim  of  supremacy  over  them.  This 
coiii-sc  of  e\-(Mits  sinHTsedcd  the  detiM-mination  which  the  Congress  of 
St.  Salvador  had  foi-med.  of  otlering  to  unite  their  fortunes  with  our 
Confedci'ation." 

Mr.  Clay,  S<t.  of  State,  to  Mr.  Williams,  charge  d'affaires  to  the  Federation  of 
the  Ccntif  Ml"  .Vuierica,   Feb.   10,  1S2(),  MS.  Inst,  to  U.  States  Ministers, 

XI.  .-). 

(.'5)    (IHA. 

;j  lis. 

'•"  Fel)ruai-v  [1S:>;3J,  I  had  some  interesting  conversation  to-da}' 
with  Mr.  Poinsett  concerning  .  .  .  Cuba,  where  he  has  latel}' 
IxM'ii  on  public  service.  .  .  .  Cuba,  he  says,  is  ripe  for  union  with 
tlio  r.  S.  whenever  Spain  is  forced  to  change  her  constitution.  Even 
tin'  old  .^i)aniards.  and  th<'  Ci-eoles  to  a  man — he  had  direct  communi- 


§  118.]  PROPOSALS    OF    ANNEXATION.  583 

cations  to  this  effect  vvitii  many  of  their  most  influential  characters. 
They  do  not.  however,  desire  any  change  until  Spain  compels  it  b}' 
some  radical  alterations  in  her  present  constitution.  Whenever  she 
does  Cuba  will  ask  for  our  protection  and  for  admission  into  the  Union. 
If  we  reject  them  they  will  then  apply  to  England.  But  at  present, 
Mr.  P.  says,  they  are  extremely  averse  to  her  superintendence. 
There  have  V)een  two  English  agents  at  Havana  for  some  time.  Cuba 
has  had  an  agent  here  in  comnuuiication  with  our  Government.  His 
name  is  Morales. 

"It  is  a  very  momentous  measure  for  the  decision  of  this  countr3\ 
Much  may  be  said  against  it.  But  1  have  long  tho't  that  whenever  Cuba 
presents  herself,  without  any  forcing  or  mancjeuvring  on  our  part,  we 
must  e'en  take  the  goods  the  Gods  provide  us.  The  Western  States 
are  all  anxiety  for  it.  To  them  Cuba  in  British  hands  would  be  intol- 
erable. The  Southern  States  have  no  objection.  The  middle  and 
east  would  consent,  tho'  the  latter  perhaps  not  freely,  as  it  would  add 
immenselv  to  a  preponderance  which  they  see  with  jealousy  and  dread 
already." 

Diary  of  Mr.  Ingersoll,  Life  of  Charles  Jared  IngersoU,  111-112. 

"These  islands  [Cuba  and  Porto  Rico],  fi"om  their  local  position  are 
natural  appendages  to  the  North  American  continent,  and  one  of  them 
[Cuba],  almost  in  sight  of  our  shores,  from  a  nuiltitude  of  considera- 
tions has  become  an  ol)ject  of  transcendent  importance  to  the  commer- 
cial and  political  interests  of  our  Union.  Its  commanding  position, 
with  reference  to  the  Gulf  of  Mexico  and  the  West  India  seas;  the 
character  of  its  population;  its  situation  midway  between  our  southern 
coast  and  the  island  of  San  Domingo;  its  safe  and  capacious  harbor  of 
the  Havana,  fronting  a  long  line  of  our  shores  destitute  of  the  same 
advantage;  the  nature  of  its  productions  and  of  its  wants,  furnishing 
the  supplies  and  needing  the  returns  of  a  connnerce  immenseW  profit- 
able and  mutualh'  ])eneficial,  give  it  an  importance  in  the  sum  of  our 
national  interests  with  which  that  of  no  other  foreign  territor\'  can  be 
compared,  and  little  inferior  to  that  which  binds  the  different  members 
of  this  Union  together.  Such,  indeed,  are.  l)etween  the  interests  of 
that  island  and  of  this  country,  the  geographical,  commercial,  moral, 
and  political  relations  formed  b}-  nature,  gathering,  in  the  process  of 
time,  and  even  now  verging  to  maturity,  that,  in  looking  forward  to 
the  probable  course  of  events  for  the  short  period  of  half  a  centur}^ 
it  is  scarcely  possible  to  resist  the  conviction  that  the  annexation  of 
Cuba  to  our  Federal  republic  will  be  indispensable  to  the  continuance 
and  integrity  of  the  Union  itself. 

"  It  is  obvious,  however,  that  for  this  event  we  are  not  yet  prepared. 
Numerous  and  formidable  objections  to  the  extension  of  our  territorial 
dominions  beyond  sea  present  themselves  to  the  first  contemplation  of 


584  s()VKKKI(;^'TY:  its  acquisition  and  loss.  [§118. 

the  siiltjtH't:  ohstacle.s  to  tho  .system  of  policy  b}'  which  alone  that 
result  can  he  compassed  and  maintained  are  to  be  foreseen  and  sur- 
mounted, both  from  at  home  and  al)road:  but  there  are  laws  of  polit- 
ical as  well  as  of  physical  gravitation;  and  if  an  ap])le.  severed  by  the 
tem])est  from  its  native  tree,  can  not  choose  but  fall  to  the  ground, 
Cuba.  forfil)ly  disjoined  from  its  own  unnatural  connection  with 
Spain,  and  inca})able  of  self-support,  can  gravitate  onh'  towards  the 
North  American  Tnion.  which,  by  the  same  law  of  nature,  can  not 
east  hei'  oti'  fi'om  its  bosom." 

Mr.  .\(lains.  Sec.  of  State,  to  Mr.  Nelson,  inin.  to  Spain,  Apr.  28,  1823,  Br.  and 
For.  St.  Pap.  (lS.^.S-'4).  XLIV.  1.38.  Extracts  from  these  instruetions  aer 
L'iven  in  Am.  St.  Pa  J).  For.  Rel.  V.  408. 

••I  candidly  confess  that  I  have  ever  looked  on  Cuba  as  the  mo.st 
interesting  addition  which  could  ever  be  made  to  our  .system  of  States. 
The  control  which,  with  Florida  point,  this  island  would  give  us  over 
the  (nilf  of  Mexico,  and  the  countries  and  the  I.sthmus  bordering  on  it, 
as  well  as  all  those  whose  waters  How  into  it.  would  till  up  the  measure 
of  our  j)olitical  well-being." 

Mr.  .Tfffcrsi.n  to  Mr.  :\Ionroe,  Oct.  24,  1823,  S.  Doc.  26,  o7  Cong.  1  sess. 

'•  If  ('ul»a  were  annexed  to  the  I'nited  States,  we  should  not  only  be 
relie\ cd  from  the  apprehensions  which  we  can  never  cease  to  feel  for 
our  own  safety  and  the  security  of  our  connnerce  whilst  it  shall  remain 
in  its  present  condition:  but  himian  foresight  can  not  anticipate  the 
beneticial  conscMjuences  which  would  result  to  every  portion  of  our 
I'liion.     This  can  never  become  a  local  (piestion. 

■■  J.  With  suitable  fortifications  at  the  Tortugas.  and  in  possession 
of  the  strongly  fortified  liarl)or  of  Habana  as  a  naval  station  on  the 
opposite  coast  of  Cuba,  we  could  command  the  outlet  of  the  Gulf  of 
Mexico  between  the  ix'ninsula  of  Floi'ida  and  that  island.  This  would 
atl'ord  ample  security  t)oth  to  the  foreign  and  coa.sting  trade  of  the 
Western  and  .Southern  States  which  seek  a  market  for  their  surplus 
l>r<)ductions  through  tlu'  i)orts  of  the  (iulf. 

"'2.  Under  the  (ioverimient  of  the  United  States,  Cuba  would 
becom«'  the  I'ichest  and  most  fertile  island  of  the  .same  extent  through- 
out the  world.   .   .   . 

"•It  would  be  (lilliciilt  to  estimate  tlx'  amount  of  bread-.stuffs,  rice, 
cotton,  and  other  agricultural,  as  well  as  manufacturing  and  mechan- 
ical productions:  -of  hnnber.  of  the  prodiu-ts  of  our  fisheries  and  of 
other  articles  which  would  iind  a  market  in  that  island,  in  exchange 
t«'i-  their  cotlee.  sugar,  tobacco  and  other  productions.  This  would 
go  oil.  in<reasing  with  the  increase  of  its  ))opulation  and  the  develop- 
ment of  its  reM)urces:  :ind  all  portions  of  the  Union  would  be  benetited 
l)V  the  trade. 


§  118.]  PKOPOSALS    OF    ANNEXATION.  585 

• 
"Desirable,  however,  as  the  possession  of  the  island  may  be  to  the 

United  States,  we  would  not  acquire  it  except  by  the  free  consent  of 
Spain.  Any  acquisition  not  sanctioned  by  justice  and  honor,  would 
be  dearlj'  purchased.  Whilst  such  is  the  determination  of  the  Presi- 
dent, it  is  supposed  that^the  present  relations  between  Cuba  and  Spain 
might  incline  the  Spanish  Government  to  cede  the  island  to  the  United 
States,  upon  the  payment  of  a  fair  and  full  consideration,   .   .   , 

"■  The  apprehension  which  existed  for  many  years  after  the  origin 
of  this  (jovernment,  that  the  extension  of  our  federal  system  would 
endanger  the  Union,  seems  to  have  passed  away.  Experience  has 
proved  that  this  sys'tem  of  confederated  Republics,  under  which  the 
Federal  Government  has  charge  of  the  interests  common  to  the  whole, 
whilst  local  governments  watch  over  the  concerns  of  the  respective 
States,  is  capable  of  almost  indefinite  extension,  with  increasing 
strength.  This,  however,  is  always  subject  to  the  qualilication  that 
the  mass  of  the  population  must  be  of  our  own  race,  or  must  have 
been  educated  in  the  school  of  civil  and  religious  liberty.  With  this 
qualilication,  the  more  we  increase  the  number  of  confederated  States, 
the  greater  will  be  the  strength  and  securit}'  of  the  Union;  because 
the  more  dependent  for  their  mutual  interests  will  the  several  parts  be 
upon  the  whole  and  the  whole  upon  the  sexeral  parts. 

"It  is  true  that  of  the  -118,291  white  inhabitants  which  Cuba  con- 
tained in  1841,  a  very  large  proportion  is  of  the  Spanish  race.  Still 
many  of  our  citizens  have  settled  on  the  island  and  some  of  them  are 
large  holders  of  property.  Under  our  Government  it  would  speedily 
be  Aimrkdnhcd^  as  Louisiana  has  been. 

"  Within  the  ))oundaries  of  such  a  federal  system  alone,  can  a 
trade,  exempt  from  duties  and  a))solutely  free,  l)e  enjoyed.  With  the 
possession  of  Cuba,  we  should  have  throughout  the  Union,  a  free  trade 
on  a  more  extended  scale  than  any  which  the  world  has  ever  witnessed — 
arousing  an  energy  and  activity  of  competition  which  would  result  in 
a  most  rapid  improvement  in  all  that  contributes  to  the  welfare  and 
happiness  of  the  human  race.  What  state  would  forego  the  advan- 
tages of  this  vast  free  trade  with  all  her  sisters,  and  place  herself  in 
lonely  isolation  I 

"But  the  acquisition  of  Cuba  would  greatl}"  strengthen  our  bond  of 
Union.  Its  possession  would  secure  to  all  the  States  within  the  valley 
of  the  Mississippi  and  the  Gulf  of  Mexico,  free  access  to  the  ocean; 
but  this  security  could  only  be  preserved  whilst  the  siiipbuilding  and 
navigating  States  of  the  Atlantic  shall  furnish  a  navy  sufficient  to  keep 
open  the  outlets  from  the  Gulf  to  the  Ocean.  Cul)a,  justly  appreciat- 
ing the  advantages  of  annexation,  is  now  ready  to  rush  into  our  arms. 
Once  admitted  she  would  be  entireh"  dependent  for  her  prosperity  and 
even  existence,  upon  h(?r  connection  with  the  Union;  whilst  the  rapidly 
increasing  trade  between  her  and   the  other  States,  would  shed  its 


586  sovereignty:  its  acquisition  and  loss.         [§  H^- 

hoiiotits  aiul  its  blessings  over  the  whole.  Such  a  state  of  mutual 
(lei)eiiden('e.  resulting  from  the  very  nature  of  things,  the  world  has 
nevi'r  witnessed.     This  is  what  will  insure  the  perpetuity  of  our  Union. 

"With  all  these  considerations  in  view,  the  President  believes  that 
the  crisis  has  arriv<'d  when  an  effort  should  he  made  to  purchase  the 
Island  of  C'uha  from  Spain,  and  he  has  determined  to  entrust  you  with 
the  performance  of  this  most  delicate  and  important  duty.  The 
attempt  should  t)e  ma(h>.  in  the  first  instance,  in  a  confidential  con- 
versation with  the  Spanish  Minister  for  Foreign  Aflairs,  A  written 
offei"  might  produce  an  absolute  refusal  in  writing,  which  would 
embarrass  us,  luMvafti'r,  in  the  acquisition  of  the  Island.  Besides, 
from  the  incessant  changes  in  the  Spanish  Cabinet  and  policy,  our 
desiiv  to  make  the  purchase  might  thus  be  made  known  in  an  official 
form  to  Foreign  Governments  and  arouse  their  jealousv  and  active 
opposition.  Indeed,  even  if  the  present  Ca))inet  should  think  favor- 
ably of  the  proposition,  they  might  ])e  greatly  embarrassed  by  having 
it  placed  on  record:  foi'.  in  that  event,  it  would  almost  certjiinly, 
through  some  channel,  reach  the  opposition,  and  become  the  subject 
of  discussion  in  the  Cortes.  Such  delicate  negotiations,  at  least  in 
their  incipient  stages,  ought  always  to  be  conducted  in  confidential 
conversation,  and  with  the  utmost  secrecy  and  despatch. 

*•  At  your  intiM-views  with  the  Minister  for  Foreign  Afi'airs.  you 
might  introduce  the  subject  by  referring  to  the  present  distracted  con- 
dition of  Cuba,  and  the  danger  which  exists  that  the  population  will 
make  an  attempt  to  accomplish  a  revolution.  This  nuist  be  well  known 
to  the  Spanish  (lovernment.  In  order  to  convince  him  of  the  good 
faith  and  friendship  towards  Spain  with  which  this  (lOvernment  has 
acted,  you  might  read  to  him  the  first  part  of  my  despatch  to  General 
Campbell,  and  the  order  issued  by  the  Secretary  of  War  to  the  (Com- 
manding (Jeneral  in  Mexico,  and  to  the  officer  having  charge  of  the 
embarkation  of  our  trooi)s  at  \'era  Cruz.  You  may  then  touch  deli- 
cately upon  the  dangei-  that  Spain  may  lose  Cuba  b}^  a  revolution  in 
the  Island,  or  that  it  uiay  be  wrested  from  her  by  Great  Britain,  should 
a  rujiture  take  i)lace  tietsveen  the  two  countries,  arising  out  of  the  dis- 
missal of  Sir  Ib'ury  Bulwer,  and  be  retained  to  pay  the  Spanish  debt 
due  to  the  British  bondholders.  You  might  assure  him.  that  whilst 
this  Government  is  entii-ely  satisfied  that  Cuba  shall  remain  under  the 
dominion  of  Spain.  w«>  should  in  any  event  resist  its  acquisition  by  anj^ 
othei-  nation.  And.  finally  you  might  inform  him,  that  under  all  these 
circumstances,  the  President  had  arrived  at  the  conclusion  that  Spain 
might  be  willing  to  transfer  the  island  to  the  United  States  for  a  fair 
anci  full  consideiation.  You  might  cite  as  a  precedent,  the  cession  of 
Louisiana  to  this  country  by  Napoleon,  under  somewhat  similar  cir- 
cumstance-, when  he  was  at  the  zenith  of  his  power  and  glory.  1  have 
nu  rely  [)resented  these  topics  in  their  natural  order,  and  you  can  fill 


§  118.]  PROPOSALS    OF    ANNEXATION.  587 

up  the  outline  from  the  information  communicated  in  this  dispatch,  as 
well  as  from  your  own  knowledge  of  the  subject. 

Should  the  Minister  for  Foreign  Affairs  lend  a  favorable  ear  to  your 
proposition,  then  the  question  of  the  consideration  to  be  paid  would 
arise;  and  j'ou  have  l>een  furnished  with  information  in  this  despatch 
which  will  enable  you  to  discuss  that  question.  In  justice  to  Mr. 
Calderon,  I  ought  here  to  observe,  that  whilst  giving  me  the  informa- 
tion before  stated,  in  regard  to  the  net  amount  of  revenue  from  Cuba 
which  reached  old  Spain,  he  had  not  then,  and  has  not  now,  the  most 
remote  idea  of  our  intention  to  make  an  attempt  to  purchase  the  island. 

'•The  President  would  be  willing  to  stipulate  for  the  payment  of 
one  hundred  millions  of  dollars  for  the  island,  and  its  dependencies,  in 
ten  equal  annual  installments.  This,  however,  is  the  maximum  price; 
and  if  Spain  should  be  willing  to  sell,  you  will  use  your  best  efforts  to 
purchase  it  at  a  rate  as  nmch  below  that  sum  as  practicable." 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Saunders,  min.  to  Spain,  June  17,  1848, 
MS.  Inst.  Spain,  XIV.  256;  Extract,  Br.  and  For.  State  Papers  (1843. 1844), 
XLIV.  178;  H.  Ex.  Doc.  121,  32  Cong.  1  sess. 

Mr.  Buchanan,  a.s  President,  in  his  annual  message  of  December  19,  1859, 
recurred  to  the  subject  of  the  annexation  of  Cuba.  After  summarizing 
the  arguments  elaborated  in  tlie  instructions  which  he  gave  as  Secretary 
of  State  to  Mr.  Saunders,  he  stated  that  the  j)ul)licity  which  had  been 
given  to  former  negotiations  and  the  large  apjinjpriation  which  might  l)e 
required  to  effect  the  purpose  in  view,  rendered  it  expedient,  before 
attempting  to  renew  negotiati<jns,  to  lay  the  whole  subject  l)efore  Con- 
gress. "I  refer,"  he  added,  "the  whole  subject  to  Congress  and  com- 
mend it  to  their  careful  consideration."  (Richardson,  ^lessages  and 
Papers  of  the  President.^,  V.  510-511.)  He  again  invited  the  ''serious 
attention  of  Congress  to  this  important  subject,"  in  his  annual  message  of 
March  8,  1859,  and  yet  again  in  his  annual  message  of  December  3,  1860. 
(Richardson,  Messages,  et*-.,  V.  561,  642.) 

"As  to  the  purchase  of  Cuba  from  Spain,  we  do  not  desire  to  renew 
the  proposition  made  })y  the  late  Administration  on  this  .•«-ubject.  It  is 
understood  that  the  proposition,  made  by  our  late  minister  at  Madrid, 
under  instructions  from  this  Department,  or  from  the  late  President 
of  the  United  States,  was  considered  by  the  Spanish  ministry  as  a 
national  indignity,  and  that  the  sentiment  of  the  ministry  was 
responded  to  by  the  Cortes.  After  all  that  has  occurred,  should 
Spain  desire  to  part  with  the  island,  the  proposition  for  its  cession  to 
us  should  come  from  her;  and  in  case  she  should  make  any,  3'ou  will 
content  yourself  with  transmitting  the  same  to  your  (TO\ernment  for 
consideration." 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Barringer,  min.  to  Spain,  Aug.  2,  1849,  MS. 
Inst.  Spain,  XIV.  295. 

Mr.  Saunders,  after  seeking  to  carry  out  his  instructions  (supra),  reported  that 
the  Spanish  minister  had  declared,  with  reference  to  the  cession  of  Cuba, 
"  that  it  was  more  than  any  minister  dare  to  entertain  stich  a  proposition; 


588  sovereignty:  its  acquisition  and  loss.         [§118. 

that  lie  lH-liev(Ml  such  td  Ik-  the  toohng  of  the  eountry,  that,  sooner  than 
ste  tlie  island  traiistVrre<l  to  any  power,  they  would  prefer  i^eeing  it  sunk 
ill  the  o.ean."  {Mr.  Saunders,  niin.  to  Spain,  to  Mr.  Buchanan,  Sec.  of 
State.  I>ec.  14.  1.S4S,  P.r.  i^  For.  State  l'apei>  (1853.  18.54),  XLIV.  195, 
\m:  II.  Kx.  Doc.  IL'I.  .S2("ong.  1  sess. ) 
I'n-sident  Buchanan.  .Tan.  ;>1,  1856,  informed  the  Senate  tliat  no  corresixjnd- 
encc  in  relation  to  tlie  purcha.se  of  Cuba  had  taken  i)lace  except  tliat 
which   ha<l   been  connnunicated   to  C'ongre.ss.      (S.  Ex.  Doc.  16,  35  (\)ng. 


•'Ihave  .  .  .  .  in  coinnion  with  several  of  my  predecessor.s,  directed 
the  iniiiisters  of  Fi-tuiee  and  P^no-land  to  he  assured  that  the  United 
States  entertain  no  dt>sitrns  against  Cuba,  but  that,  on  the  contrary, 
1  should  reo-ard  its  inco"rporation  into  the  Union  at  the  present  time 
as  frau«rht  w  ith  serious  peril.  Were  this  island  comparatively  des- 
titute of  iniiat)itants  or  occupied  l)v  a  kindred  race.  I  should  regard 
it.  if  vohmtarily  ceded  by  Spain,  as  a  most  desirable  acquisition.  But 
under  existing  cireumstances  I  should  look  upon  its  incorporation  into 
our  I'nion  as  a  very  hazardous  measure.  It  would  bring  into  the  Con- 
fedei-acy  a  po])ulation  of  a  different  national  stock,  speaking  a  different 
language,  and  not  likely  to  harmonize  with  the  other  members.  It 
woidd  probably  affect  in  a  prejudicial  manner  the  industrial  interests 
of  the  South,  and  it  might  revive  those  conflicts  of  opinion  between 
the  dirterent  sections  of  the  country  which  lately  shook  the  Union  to 
its  center.  :ind  which  have  been  so  happilv  compromised." 

President  Fiiiuiore.  annual  nies.sage.  Deceinl)er  6,  18.">2,  Richardson,  Messages 
an<l  Bajicrs    .f  the  Presidents.  V.  165. 

■'With  an  experience  tluis  suggestive  and  cheering,  the  policy  of 
my  Administration  will  not  be  controlled  by  any  timid  forebodings  of 
evil  from  exj^ansion.  IndtM'd.  it  is  not  to  be  di.^guised  that  our  atti- 
tude as  :i  nation  and  our  ])osition  on  the  globe  render  the  acquisition 
of  certain  possessions  not  within  our  jurisdiction  eminently  important 
for  our  protection,  if  not  in  the  future  es.sential  foi'  the  preservation 
of  the  right>  of  coiniuerce  and  the  peace  of  the  world." 

Pn-s.  Pierce.  IiiaiiLTurai  A-ldress,  March  4,  1853,  Richardson.  Me.«s.  and  Pap.  of 
the  Pres.  W   I'.ts. 

■'It  is  no  longer.  1  hidieve.  u  secret  in  Spain  that  the  Ignited  States 
\vi>li  to  obtain  the  ces>ioii  |of  Cuba],  and  that  you  have  authority- to 
treat  on  the  subject.  .  .  .  Shoidd  you  tind  persons  of  position 
oi-  intlueiice  disposed  to  converse  on  the  sid)ject,  the  considei'ations  in 
ta\(»r  of  a  cession  are  so  many  and  so  strong  that  those  who  can  be 
brought  to  listen  would  very  likely  become  converts  to  the  measure. 
r>ut  -hould  you  have  reason  to  believe  that  the  men  in  power  are 
a\  ei>e  to  entertaining  such  a  ])roposition  -that  the  ort'er  of  it  would 
b.   otfeii-ive  to  the  national  pride  of  Spain,  and  that  it  would  tind  no 


§  11^.]  PROPOSALS    OF    ANNEXATION.  589 

favor  in  any  considerable  class  of  the  people — then  it  will  be  but  too 
evident  that  the  time  for  opening,  or  attempting  to  open,  such  a  nego- 
tiation has  not  arrived.  .  .  .  The  language  of  some  part  of  the 
report  might  perhaps  be  so  construed  as  to  sustain  the  inference  that 
3'ou  and  your  associates  in  the  conference  were  of  opinion  that  the 
proposition  should  be  made,  though  there  should  ))e  no  chance  of  its 
being  entertained,  and  that  it  should  be  accompanied  Avith  the  open 
declaration  or  a  significant  suggestion  that  the  United  States  were 
determined  to  have  the  island,  and  would  obtain  it  by  other  means  if 
their  present  advances,  so  advantageous  to  Spain,  be  refused  by  her; 
but  other  parts  of  the  report  repel  this  inference.  ...  I  will 
only  remark  that  the  acquisition  of  Cuba  by  the  United  States  would 
be  preeminently  advantageous  in  itself  and  of  the  highest  importance 
as  a  precautionary  measure  of  security.  However  much  we  might 
regret  the  want  of  success  in  our  efforts  to  obtain  the  cession  of  it, 
that  failure  would  not,  without  a  material  change  in  the  condition  of 
the  island,  involve  imminent  peril  to  the  existence  of  our  government. 
But  should  the  contingency  suggested  in  your  report  ever  arise,  there 
is  no  reason  to  doubt  that  the  case  will  be  promptly  met  by  the  delib- 
erate judgment  and  decisive  action  of  the  American  people."' 

Mr.  Marcy,  See.  of  State,  to  Mr.  Souk'-,  iniii.  to  Siiaiii,  Nov.  i:5,  18•^4,  H.  F.x. 
Doc.  93,  :^8  Cong.  2  ses.s.  VU,  18.5-136. 

The  "report''  referred  to  in  the  foregoing  pa^^age  is  the  so-called  "Ostend 
Manifesto"  signed  by  ^Messrs.  Soule,  Buclianan,  and  Mason.  The  "con- 
tingency" suggested  by  them  was  tliat  which  would  arise  in  case  Spain 
should  refuse  to  sell  CuV^a,  and  it  should  appear  that  the  island,  in  her 
IX)ssession,  "seriously  endangered  our  internal  peace  and  the  existence  of 
our  cherished  T'nion."      (H.  Ex.  Doc.  9.3,  33  Cong.  2  sess.  131. 

See  also,  Curtis,  Life  of  Buchanan,  II.  136-141;  Lawrence's  Wheaton  (1863), 
149,  150;  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Buchanan,  min.  to  England, 
June  27,  1854,  :\IS.  Inst.  ( ireat  Britain. 

"An  examination  of  the  large  mass  of  correspondence  in  regard  to  Cuba,  since 
1869,  printed  in  Executive  Documents  and  Foreign  Relations,  will  show 
you  that  no  proposal  for  the  annexation  of  that  island  to  the  L'nited  States 
has  been  made  by  or  on  behalf  of  this  Government."  (Mr.  Adee,  Second 
Assi.<t.  Sec.  of  State,  to  Mr.  Ohl,  Jan.  14,  1898,  224  MS.  Dom.  Let.  434.) 

The  United  States  "have  constantly  indidged  the  belief  that  they 
might  hope  at  some  day  to  acquire  those  islands  [Cuba  and  Porto 
Rico]  by  just  and  lawful  means,  with  the  consent  of  their  sovereign."' 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Schurz,  nun.  to  Spain,  April  27,  1861,  MS. 
Inst.  Spain,  XV.  263. 

(4j     VITATAX. 
S    ll'.». 

In  1S4S,  an  Indian  outbreak  having  occurred  in  Yucatan,  the 
authorities  offered  to  transfer  the  "dominion  and  sov<M-eignty "  to  the 
United  States,  and  at  the  same  time  made  a  similar  offer  to  Great 
Britain  and  Spain.     President  Polk  recommended  the  occupation  of 


590         sovereignty:  its  acquisition  and  loss.      [§§120-121. 

the  tcrritorv  l)y  the  rnitod  States,  May  4.  1848.  a  bill  to  enable  the 
rrcsidcnt  "to  take  toinporarv  military  occ-upation  of  Yucatan"  was 
iiitroductMl  ill  tlu'  Sonate.  and  its  passage  was  urged  on  grounds  both 
of  Iiuinunity  and  of  national  policy.  A  few  days  later,  however,  infor- 
mation was  received  of  the  comdusion  of  a  treaty  between  the  Indians 
and  the  whites,  and  the  })ill  was  not  again  called  up. 

Con^.  (il.)lH-,  :iOth  Conjr.  1  nes^i.,  709,  778;  S.  Ex.  Doc.  40,  30  Cong.  1  sees.; 
S.  Kx.  Doc.  4o.  .SO  Cong.  1  sei^s. ;  Rr.  iSc  For.  State  Papers  (1860.  1861), 
LI.  11S4-1237. 

(5)     ISLANUS    AT    I'AXAMA. 

In  1S5H  the  Tnited  States,  in  order  to  protect  and  render  secure  the 
transportation  of  j)ersons  and  property  across  the  Isthmus  of  Panama, 
endeavored  to  obtain  the  cession  from  New  Granada  of  the  islands  in 
the  Hay  of  ranama.  viz,  Taboga.  Flamingo.  Ilenao,  Ferico,  and  Cule- 
bra.  A  sp«'cial  mission  was  sent  out  to  endeavor  to  obtain  the  cession, 
))ut  it  was  unsuccessful. 

Mr.  Many.  S.-c.  i>f  State,  to  McstJr^<.  Morne  and  Bowlin,  Dec.  3,  1856,  S.  Ex. 
Doc.  Ill',  4t)  Cong.  2  ^vt-f.;  Correspondence  in  relation  to  the  proposed 
Interoceanii'  Canal  between  the  Atlantic  and  Pacific  oceans,  the  Clayton- 
Bnlwer  treaty,  and  the  Monroe  Doctrine,  (Tovernnient  Printing  Office, 
1S,S,'>,  21-27. 

(6)  sAXTO  i)OMix«io;  s;a.maxa  bay. 
S  121. 

'"You  hnvv  connnunicated  to  me  certain  views  and  wishes  which 
liave  been  expressed  to  you  by  President  Baez,  and 
omingo.  j^.^  coiitidential  minister.  Mr.  Felix  Delmonte.  These 
views  and  desires  substantially  are  that  the  United  States  shall  imme- 
diately })ul)lish  a  declaration  i)lacing  the  Dominican  Republic  under 
the  ])r()t('ction  of  the  United  States  and  shall  sustain  the  proclamation 
bv  sending  xcssels  of  war  to  take  ])ossession  of  Samana  and  Mance- 
nilla  bays  and  any  other  points  that  military  strategy  might  indicate, 
and  thus  ])ave  the  way  for  aiuiexation  to  the  United  States  by  Mr. 
Baez.  who.  although  President  by  name,  is  virtually  clothed  with 
dictatorial  powers.  You  ha\-e  given  me  the  considerations  out  of 
whicli  tliese  views  have  arisen.  The.se  considerations  are  that  the  pro- 
ceedings thus  solicited  w<Mdd  imj)art  g^reat  confidence  to  the  ])eople  of 
Dominica,  and  likewise  to  foreigners  who  might  wish  to  settle  there, 
but  ai-e  at  present  picvented  l»y  the  constant  changes  and  uncertaint}^ 
of  the  Dominican  (lovernment;  that  the  late  revolution  in  Spain  may 
lead  to  important  I'oNolutions  in  the  condition  of  affairs  in  Cuba  and 
Porto  Rico,  and  may  have  a  tendency  to  induce  man}'  planters  to 
remove  from  those  islands  to  St.  Domingo;  that  there  is  a  prospect  of 
a  genei-al  war  ir»  Kui-oj)e.  and  that  there  could  >)e  no  more  propitious 
time  than  the  present  for  the   United  States  to  place  St.  Domingo 


§121.]'  PROPOSALS    OF    ANNEXATION.  591 

under  their  protection;  that,  in  the  opinion  of  Mr,  Baez  and  Mr. 
Dehnonte,  the  Dominican  Republic  would  in  that  case  at  once  seek 
admission  into  the  Union,  which  is  the  fervent  wish  of  a  large  portion 
of  its  people.  You  give  your  own  opinion  that  the  extinction  of 
slavery  in  the  United  States  has  prepared  the  way  for  the  important 
proceeding  which  those  gentlemen  have  thus  recommended,  and  that 
it  is  eminently  desirable  in  view  of  the  decline  which  has  taken  place 
within  the  last  century  in  the  productions  and  revenues  of  the  island 
of  St.  Domingo. 

"President  Baez  and  his  minister  can  not  be  unaware  that  the  pro- 
ceeding which  they  propose,  however  beneficent  its  purposes  might 
be,  would  nevertheless  in  its  nature  be  an  act  of  war,  and  that  as  such 
it  transcends  the  power  of  the  executive  government,  and  falls 
within  the  exclusive  province  of  Congress. 

'"In  submitting  such  a  transaction  to  the  governments  of  mankind,  it 
would  be  difficult  to  distinguish  it  from  the  attempt  which  was  made 
during  our  recent  civil  war  by  Spain  to  reannex  the  Dominican  Republic 
to  her  own  dominion  l)v  means  of  an  illegal  arrangement  made  between 
the  Spanish  Government  and  Santa  Anna,  then  President  of  the  Domin- 
ican Republic.  There  would,  indeed,  be  this  difference,  that  in  the 
case  proposed  by  President  Baez  the  Dominican  Republic  would  be 
virtually  transferred  to  and  accepted  >)van  American  Republic  whereas 
in  the  other  case  it  was  an  attempt  to  subvert  a  republic  at  St.  Domingo 
and  annex  it  as  a  province  to  one  of  the  ancient  European  monarchies. 
It  may  be  doubted  whether  this  distinction  would  be  regarded  as  a 
moral  justification  of  the  proceeding. 

"•  If,  however,  we  lay  that  question  aside,  there  still  remains  an  inher- 
ent difficulty  in  the  case.  To  establish  the  protectorate  in  St.  Domingo 
would  ))e  virtual  annexation  by  act  of  war.  and  not  by  the  consent  and 
agreement  of  the  people  of  the  Dominican  Republic.  The  Congress 
of  the  United  States  are  ajways  disinclined  to  foreign  militar}-  conquest, 
perhaps  more  so  now  than  at  any  time  heretofore.  It  seems  unlikely, 
therefore,  that  Congress  would  entertain  any  other  proposition  for  the 
annexation  of  Dominica  than  one  which  should  originate  with  and  have 
the  sanction  of  the  Dominican  people,  expressed  in  a  regular  constitu- 
tional manner.  Nevertheless,  the  subject  is  a  very  important  one,  and  I 
reserve  further  consideration  of  it  until  Congress  shall  have  assembled, 
which  will  be  on  the  first  Monday  in  December. 

"You  may  read  this  dispatch,  confidentially,  to  President  Baez  and 
his  secretary.'"' 

Mr.  Seward,  Sec.  of   State,  to  Mr.  Smith,  commercial  a^ent  at  St.  Domingo 
City,  Nov.  17,  1868,  MS.  Dispatches  to  Consuls.  LIII.  61. 

"Comprehensive  national  policy  would  seem  to  sanction  the  acqui- 
sition and  incorporation  into  our  Federal  Union  of  the  several  adja- 
cent continental  and  insular  communities  as  speedily  as  it  can  be  done 


')\)2  sovereignty:  its  acquisition  and  loss.        *[§121. 

pt>:uofull\ .  lawfully,  aiul  without  any  violation  of  national  justice, 
taitli.  (»r  honor.  Forcijicn  possession  or  control  of  those  communities 
has  liithtMto  hindered  the  growth  and  impaired  the  influence  of  the 
United  States.  Chronic  revolution  and  anarchy  there  would  be 
equally  injurious.  p]ach  one  of  them,  Avhen  firmly  established  as  an 
independent  republic,  or  when  incorporated  into  the  United  States, 
would  !)(>  a  new  source  of  str(Mio-th  and  power.  Conforming  ni}^ 
administiation  to  these  principles.  I  have  on  no  occasion  lent  support 
or  toleration  to  uidawful  expeditions  set  on  foot  upon  the  plea  of 
re])ut)lican  ])r()i)a»>'andism  or  of  national  extension  or  aggrandizement. 
The  necessity,  however,  of  repressing  such  unlawful  movements 
cleui'ly  indicates  the  duty  which  rests  uj)on  us  of  adapting  our  legisla- 
tive action  to  the  nvw  circumstances  of  a  decline  of  P^uropean  monar- 
chical powei'  and  influence  and  the  increase  of  American  republican 
ideas,  interests,  and  sympathies. 

*•  It  can  not  be  long  ln»fore  it  will  become  necessary  for  this  Govern- 
ment to  lend  some  (>rt'ective  aid  to  the  solution  of  the  political  and 
social  pr()])lems  which  are  continually  kept  before  the  world  by  the 
two  Keput>lics  of  the  island  of  St.  Domingo,  and  which  are  now  dis- 
closing themselves  moi'e  distinctly  than  heretofore  in  the  island  of 
Cut»a.  The  sul)ject  is  conunended  to  your  consideration  with  all  the 
more  earnestness  because  1  am  satisfled  that  the  time  has  arrived  when 
even  so  direct  a  proceeding  as  a  proposition  for  an  annexation  of  the 
two  Repul)lics  of  the  island  of  St.  Domingo  would  not  only  receive  the 
consent  of  th<'  ])e()ple  interested,  but  would  also  give  satisfaction  to 
all  other  fortMgn  nations. 

'■•  1  am  iiware  that  u])()n  the  (juestion  of  further  extending  our  pos- 
sessions it  is  aj)pi'eiiended  by  some  that  our  political  system  can  not 
succ(>ssfully  be  up))li(>d  to  an  area  more  extended  than  our  continent, 
but  the  conviction  is  rapidly  gaining  ground  in  the  American  mind 
that  with  the  incr(>ased  facilities  for  intercommunication  between  all 
portions  of  the  eai'th  the  principles  of  free  government,  as  embraced 
in  our  Constitution,  if  faithfully  maintained  and  carried  out,  would 
prove  of  suflicient  strength  and  breadth  to  comprehend  within  their 
spher(^  and  influence  the  civili/*^!  nations  of  the  world." 

Prcsidt'tit  .r<iliiis(iii,  FouT-tli  Annual  Message,  Dec.  9,  1868,  Richar(lson'.i  Mes- 
sai.'cs,  \'I.  (iss-t)S<). 

The  n'|M.rt  uf  .Inlm  Ilotran,  special  agent  and  conuniis^ioner  of  the  I'nited 
States,  to  Mr.  I'>n<hanan,  Secretary  of  State,  received  Oct.  4,  1845,  on 
Ihiyti  and  San  D-nnintro,  is  jtrinted  in  II.  Ex.  Doc.  42,  41  Cong.  .3  sess. 
The  rejxirt  of  ('a|.tain  ( ieo.  H.  McClellan  to  the  Secretary  of  War,  Aug. 
L'7,  ls.")4,  oil  San  DDiningo,  and  i)articularly  on  Samana  Bay  a.s  a  naval 
station,  is  printed  in  II.  Kx.  I)<ic.  4:'.,  41  Cong.  .3  se.s.s.  Both  these  docu- 
ments are  reprinted  in  S.  Kx.  Doc.  17,  41  Cong.  3  sess. 

'"I  li!i\e  received  your  lett<'r  of  this  morning  and  hasten  to  make  a 
reply,     '{"he  information  upon  which  the  statement  of  the  President's 


§  121.]  PROPOSALS    OF    ANNEXATION.  593 

message  concerning  the  condition  of  the  Republics  of  Hayti  and  St. 
Domingo  is  based,  is  official,  although  from  prudential  considerations 
the  communications  containing  it  are  confidential.  The  opinion 
expressed  by  the  President  that  those  Republics  are  not  unprepared 
for  a  direct  proposition  of  annexation  was  inferred  from  the  nature 
of  the  propositions  which  had  been  received  at  this  Department  before 
the  meeting  of  Congress,  but  which  expressed  or  implied  some  limita- 
tion or  condition  of  military  aid  or  pecuniary  equiv^alent.  Within  the 
present  week,  however,  a  reliable  and  confidential  proposition  comes 
from  the  Dominican  Republic  which  proposes  immediate  annexation, 
waives  all  preliminary  stipulations  and  addresses  itself  simply  to  the 
discretion  and  friendship  of  the  United  States.  An  agent  from  St. 
Domingo  awaits  the  action  of  the  Government.  I  am  obliged  to  ask 
that  this  communication,  although  it  is  official,  ma}"  for  the  present  be 
regarded  as  entirely  confidential." 

Mr.  Seward,  Sec.  oi  State,  to  :Mr.  Banks,  M.  C,  Jan.  29,  1869,  80  MS.  Dom. 
Let.  209.  • 

Mr.  Orth,  of  Indiana,  introduced  in  the  House  a  joint  resolution  for  the 
admission  of  St.  Domingo,  on  the  application  of  the  people  and  Govern- 
ment of  that  Republic,  into  the  Union  as  a  Territory  of  the  United  States, 
with  a  view  to  ultimate  statehood.  The  resolution  was  not  accompanied 
by  a  report,  but  Mr.  Orth  stated  that  it  had  "the  approbation  of  a  large 
majority  of  the  Committee  on  Foreign  Affairs."  On  his  insisting  upon 
the  previous  question,  the  resolution  was,  on  motion  of  Mr.  Holman,  laid 
on  the  table  by  a  vote  of  110  to  63.     (Bancroft's  Seward,  II.  489.) 

"During  the  last  session  of  Congress  a  treaty  for  the  annexation  of 
the  Republic  of  San  Domingo  to  the  United  States  failed  to  receive  the 
requisite  two-thirds  vote  of  the  Senate.  I  was  thoroughly  convinced 
then  that  the  best  interests  of  this  country,  commercially  and  materially, 
demanded  its  ratification.  Time  has  only  confirmed  me  in  this  view.  1 
now  firmly  believe  that  the  moment  it  is  known  that  the  United  States 
have  entirely  abandoned  the  project  of  accepting,  as  part  of  its  terri- 
tory, the  island  of  San  Domingo,  a  free  port  will  be  negotiated  for  by 
European  nations  in  the  Bay  of  Samana.  A  large  commercial  city 
will  spring  up,  to  which  we  will  be  tributary  without  receiving  corre- 
sponding benefits,  and  then  will  be  seen  the  folh'  of  our  rejecting  so  great 
a  piize.  The  Government  of  San  Domingo  has  voluntarily  sought  this 
annexation.  It  is  a  weak  power,  numbering  probably  less  than  120,000 
souls,  and  yet  possessing  one  of  the  richest  territories  under  the  sun, 
capable  of  supporting  a  population  of  10.000,000  of  people  in  luxur3\ 
The  people  of  San  Domingo  are  not  capable  of  maintaining  themselves 
in  their  present  condition,  and  must  look  for  outside  support.  They 
yearn  for  the  i)rotection  of  our  free  institutions  and  laws — our  progress 
and  civilization.     Shall  we  refuse  them? 

"The  acquisition  of  San  Domingo  is  desirable  because  of  its  geo- 
graphical position.     It  commands  the  entrance  to  the  Caribbean  Sea 

H.  Doc.  551 38 


5U4  sovkrkignty:  its  acquisition  and  loss.  [§121. 

ami  tlu"  Isthimis  transit  of  coinmorce.  It  possesses  the  richest  soil,  best 
aiul  most  capacious  harl)ors.  most  sahibrious  climate,  and  the  most  val- 
iialilc  products  of  the  forest,  mine,  and  soil  of  any  of  the  West  India 
Islands.  Its  possession  bv  us  will  in  a  few  years  build  up  a  coastwise 
coimncM-ce  of  inunense  maj^nitude.  which  will  go  far  toward  restoring  to 
us  oui'  lost  uKn-chant  marine.  It  will  give  to  us  those  articles  which  we 
consume  so  largely  and  do  not  pi'oduce.  thus  equalizing  our  exports  and 
imports.  In  case  of  foreign  war  it  will  give  us  conmiand  of  all  the 
islands  ivferred  to.  and  thus  prevent  an  enemy  from  ever  again  pos- 
sessing himself  of  rendezvous  upon  our  very  coast.  At  present  our 
coast  trade  l)etween  the  States  bordering  on  the  Atlantic  and  those 
bordering  on  the  (hdf  of  Mexico  is  cut  into  b}'  the  Bahamas  and  the 
Antilles.  Twice  we  must,  as  it  were,  pass  thi'ough  foreign  countries 
to  get  by  sea  from  (ieorgia  to  the  Avest  coast  of  Florida. 

"San  Domingo,  with  a  stable  government  under  which  her  immense 
resources  can  be  developed,  will  give  remunerative  wages  to  tens  of 
thousands  of  laborers  not  now  upon  the  island.  This  labor  will  take 
advantage  of  every  available  means  of  transportation  to  abandon  the 
adjacent  islands  and  seek  the  blessings  of  freedom  and  its  sequence — 
each  inhal)itant  receiving  the  reward  of  his  own  lal)or.  Porto  Rico 
and  Cuba  will  have  to  abolish  slavery,  as  a  measure  of  self-preservation, 
to  retain  their  laborers. 

"San  Domingo  will  become  a  large  consumer  of  the  products  of 
Northern  farms  and  manufactories.  The  cheap  rate  at  which  her  citi- 
zens can  ))e  fui-nished  with  food,  tools,  and  machinery  will  make  it 
necessary  that  contiguous  islands  should  have  the  same  advantages  in 
order  to  compete  in  the  production  of  sugar,  coffee,  tobacco,  tropical 
fruits.  tScc.  This  will  open  to  us  a  still  wider  market  for  our  products. 
The  ])i-()duction  of  our  own  supply  of  these  articles  will  cut  off  more 
than  one  hundred  millions  of  our  annual  imports,  l)esides  largely  in- 
creasing our  ex|)orts.  With  such  a  picture  it  is  easy  to  see  how  our 
large  del)t  abroad  is  ultimately  to  hv  extinguished.  With  a  balance  of 
trade  against  us  (including  interest  on  bonds  held  ])y  foreigners  and 
money  spent  by  our  citizens  traveling  in  foreign  lands)  equal  to  the 
entire  yield  of  the  preciovis  metals  in  this  country,  it  is  not  so  easy  to 
see  how  this  result  is  to  be  otherwise  accomplished. 

"The  acijuisition  of  San  Domingo  is  an  adh(>rence  to  the  '  Monroe 
doctrine:*  it  is  a  measure  of  national  protection;  it  is  asserting  our 
just  claim  to  a  contiolling  influence  over  the  great  commercial  traffic 
soon  to  flow  from  west  to  east  l)y  way  of  the  Isthmus  of  Darien;  it  is 
to  build  up  our  merchant  marine;  it  is  to  furnish  new  markets  for  the 
products  of  our  farms,  shops,  and  manufactories;  it  is  to  make  slavery 
in-ui)portable  in  ('u})a  and  Porto  Rico  at  once,  and  ultimately  so  in 
P)ra/il:  it  is  to  settle  the  unhappy  condition  of  Cuba  and  end  an  exter- 
miniiting  conflict;  it  is  to  provide  honest  means  of  paying  our  honest 


§  121.]  PEOPOSALS    OF    ANNEXATION.  595 

debts  without  overtaxing  the  people;  it  is  to  furnish  our  citizens  with 
the  necessaries  of  every-day  life  at  cheaper  rates  than  ever  before;  and 
it  is,  in  fine,  a  rapid  stride  toward  that  greatness  which  the  intelligence, 
industry,  and  enterprise  of  the  citizens  of  the  United  States  entitle  this 
country  to  assume  among  nations. 

"In  view  of  the  importance  of  this  question,  I  earnestly  urge  upon 
Congress  early  action  expressive  of  its  views  as  to  the  best  means  of 
acquiring  San  Domingo.  My  suggestion  is  that,  by  joint  resolution 
of  the  two  houses  of  Congress,  the  Executive  be  authorized  to  appoint 
a  commission  to  negotiate  a  treaty  with  the  authorities  of  Saii  Domingo 
for  the  acquisition  of  that  island,  and  that  an  appropriation  be  made 
to  defray  the  expenses  of  such  commission.  The  question  may  then 
be  determined,  either  by  the  action  of  the  Senate  upon  the  treat}-,  or 
the  joint  action  of  the  two  houses  of  Congress  upon  a  resolution  of 
annextion,  as  in  the  case  of  the  acquisition  of  Texas;  So  convinced 
am  I  of  the  advantages  to  flow  from  the  acquisition  of  San  Domingo, 
and  of  the  great  disadvantages — I  might  almost  say  calamities — to  flow 
from  nonacquisition,  that  I  believe  the  subject  has  only  to  be  investi- 
gated to  be  approved." 

President  Grant,  second  annual  message,  Dec.  5,  1870. 

The  vote  of  the  Senate  on  the  treaty  referred  to  in  the  foregoing  passage  stood 
28  to  28. 

Mr.  Blaine  states  that  the  negotiation  began  about  three  months  after  Presi- 
dent Grant's  inauguration,  and  that  it  was  opened  at  the  request  of  the 
Dominican  authorities.  (Twenty  Years  of  Congress,  II.  458.)  The  over- 
ture, indeed,  was  made  prior  to  President  Grant's  inauguration,  and  doubt- 
less bore  a  close  connection  with  Mr.  Seward's  long-continued  efforts 
(infra)  to  obtain  a  cession  or  lease  of  Samana  Bay,  as  appears  by  the  letter 
to  Gen.  Banks,  supra. 

Mr.  Fish's  instructions  to  Gen.  Babcock,  July  13,  1869,  directed  him  to  pro- 
ceed to  San  Domingo  as  a  special  agent,  to  obtain  information.  (S.  Ex. 
Doc.  17,  41  Cong.  3  sess.  79.)  General  Babcock  sailed  from  New  York 
July  17,  1869.  On  the  4th  of  September  he  signed  with  Mr.  (iautier,  the 
Dominican  Secretary  of  State,  a  protocol  containing  certain  articles,  which 
were  to  serve  as  the  basis  for  a  definitive  treaty  of  annexation.  (S.  Rep. 
234,  41  Cong.  2  sess.  188.)  General  Babcock  then  returned  to  the  United 
States.  Nov.  16, 1869,  he  was  instructed  to  proceed  to  San  Domingo  again, 
with  a  draft  of  a  treaty  of  annexation,  and  of  a  convention  for  the  lease 
of  Samana  Bay.  The  treaty  and  convention  were  to  be  coni'luded  by  Mr. 
Perry,  I'nited  States  conunercial  agent  at  San  Domingo,  who  was  to  act 
under  his  advice.  (S.  Ex.  Doc.  17,  41  Cong.  3  sess.  80,  9.5.)  They  both 
were  signed  Nov.  29,  1869.  They  were  communicated  to  the  Senate  Jan. 
10,  1870.     (S.  Ex.  Doc.  17,  41  Cong.  3  sess.  98,  101.) 

"In  July  General  O.  K.  Babcock,  one  of  the  President's  private 
secretaries,  was  dispatched  to  San  Domingo  upoti  an  errand  of  which 
the  public  knew  nothing.  He  bore  a  letter  of  instructions  from  Sec- 
retary- Fish,  apparently  limiting  the  mission  to  an  inquiry  into  the 
condition,  prospects,  and  resources  of  the  island.     From  its  tenor  the 


51)8  SOVEREIGNTY :    ITS    ACQUISITION    AND    LOSS.  [§  121. 

ne»r<>tiation  of  a  treaty  was  not  at  that  tim«^  anticipated  by  the  State 
Dt'partinent.  (Jenerjil  Balx-ock's  mission  tinaily  resulted,  however,  in 
a  treaty  for  the  annexation  of  the  Republic  of  Dominica,  and  a  con- 
vention for  the  lease  of  the  bay  and  peninsula  of  Samana — separate^ 
ne«rotiated,  and  both  concluded  on  the  21>th  of  November,  ISOO.  The 
territory  includ(>d  in  the  Dominican  Republic  is  the  eastern  portion  of 
the  island  of  San  Dominj^o,  orijrinally  known  as  Hispaniola.  It 
embi-aces.  perhaps,  two-thirds  of  the  whole.  The  western  part  forms 
the  Kepul)Iic  of  llayti.  With  the  exception  of  Cuba,  the  island  is  the 
larjrest  of  the  West  India  i.n'<nip.  The  total  area  is  about  28,000  square 
miles — e((uivalent  to  Massachusetts.  X(mv  Hampshire,  Vermont,  and 
Khode  Island  combined.  President  (irant  placed  extravagant  esti- 
mates upon  the  valiu>  of  the  territory  Avhich  he  supi)osed  was  now 
ac([uired  under  the  Babcock  treaties.  In  his  message  to  Congress  he 
expressed  the  ))elief  that  tlie  island  would  yield  to  the  United  States 
all  the  sugar,  coft'ee,  tobacco,  and  other  tiopical  products  which  the 
country  would  consume.  'The  production  of  our  supply  of  these 
articles.'  said  the  President,  '  will  cut  off  more  than  $l00,0O0,0(»O  of  our 
annual  imports,  besides  largely  increasing  our  exports.'  *  *  *  '  j^ 
is  easy.*  he  went  on  to  say,  'to  see  how  our  large  debt  abroad  (after 
such  an  annexation)  is  ultimately  to  be  extinguished.'  He  maintained 
that  'the  ac(|uisition  of  San  Domingo  will  furnish  our  citizens  with  the 
necessari(\s  of  everyday  life  at  cheaper  rates  than  ever  before,  and  it 
is  in  tine  a  rapid  stride  towards  that  greatness  which  the  intelligence, 
industry,  and  enterprise  of  our  citizens  entitle  this  countr}'  to  assume 
among  nations.' 

"The  subject  at  once  led  to  discussion  in  both  branches  of  Congress, 
in  wiiich  the  hostility  to  the  scheme  on  the  part  of  some  leading  men 
as>umed  the  tone  of  pei'sonal  exasperation  towards  (Jeneral  Grant. 
So  intense  was  the  opposition  that  the  President's  friends  in  the  Senate 
did  not  deem  it  ])rudent  (>ven  to  discuss  the  measure  which  he  recom- 
mended. As  the  best  that  could  be  done,  Mr.  Morton,  of  Indiana, 
intioduced  a  i-esolution  em{)owering  the  President  to  appoint  three 
connnissioners  to  jjioceed  to  San  Domingo  and  make  certuin  inquiries 
into  the  political  condition  of  the  island,  and  also  into  its  agricultural 
and  commercial  value.  The  coimuissioner.s  wei'e  to  have  no  compen- 
sation. Their  expenses  wei-e  to  l)e  ])aid.  and  a  secretary  was  to  be 
j)i-ovided.  Kven  in  this  mild  shape,  the  resolution  was  hotly  opposed. 
It  was  finally  adopted  by  the  SiMiate.  but  when  it  reached  the  House, 
that  Ixxly  refus(Hl  to  concui".  exce])t  with  a  ])roviso  that  nothing  in  this 
icNolution  >hall  be  held,  understood,  or  construed  as  committing  Con- 
g!e>>  to  the  j)olicy  of  annexing  San  Domingo.  The  Senate  concurred 
in  tile  condition  thus  attached,  and  the  President  approved  it.  It  was 
])iaiii  that  the  President  could  not  cai'ry  the  annexation  scheme,  but  he 
courted  a  searching  investigation  in  order  that  the  course  he  had  pur- 


§  121.]  PROPOSALS    OF    ANNEXATION.  597 

sued  might  be  vindicated  In-  the  well  considered  judgment  of  impar- 
tial men.  The  President's  selections  for  the  commission  were  wisely 
made.  Benjamin  F.  Wade,  of  Ohio,  Andrew  D,  White,  of  New  York, 
and  Samuel  G.  Howe,  of  Massachusetts,  were  men  entitled  to  the 
highest  respect,  and  their  conclusions,  based  on  intelligent  investiga 
tion,  would  exert  large  iniluence  upon  public  opinion.  The  commis- 
sion at  once  visited  the  island  (carried  thither  on  a  United  States  vessel 
of  war),  made  a  thorough  examination  of  all  its  resources,  held  con- 
ferences with  its  leading  citizens,  and  concluded  that  the  policy  recom- 
mended by  General  Grant  should  be  sustained.  The  commissioners 
corroborated  General  Grant's  assertion  that  the  island  could  supply 
the  United  States  with  sugar,  coffee,  and  other  tropical  products 
needed  for  our  consumption;  and  the}^  upheld  the  President  in  his 
belief  that  the  possession  of  the  island  by  the  United  States  would  by 
the  laws  of  trade  make  slave  labor  in  the  neighl^oring  islands  unprofit- 
a))le,  and  render  the  whole  slave  and  caste  S3'stems  odious.  In  com- 
municating the  report,  the  President  made  some  remarks  which  had  a 
personal  bearing.  '  The  mere  rejection  by  the  Senate  of  a  treaty 
negotiated  bj"  the  President,'  said  he,  '  only  indicates  a  difference  of 
opinion  among  different  departments  of  the  Government,  without 
touching  the  character  or  wounding  the  pride  of  either.  But  when 
such  rejection  takes  place  sinmltaneously  with  the  charges  openly 
made  of  corruption  on  the  part  of  the  Pi-esident,  or  of  those  employed 
b}"  him,  the  case  is  different.  Indeed,  in  such  case,  the  honor  of  the 
nation  demands  investigation.  This  has  been  accomplished  by  the 
report  of  the  conmiissioners,  herewith  transmitted,  and  which  fully 
vindicates  the  purity  of  motives  and  action  of  those  who  represented 
the  United  States  in  the  negotiation.  And  now  my  task  is  finished, 
and  with  it  ends  all  personal  solicitude  on  the  subject.  My  duty  being 
done,  3^ours  begins,  and  I  gladly  hand  over  the  whole  matter  to  the 
judgment  ,of  the  American  people,  and  of  their  representatives  in 
Congress  assembled.'  The  pointed  remarks  of  the  President  were 
understood  as  referring  to  the  speech  made  b}'  Mr.  Sumner  when  the 
resolution  for  the  appointment  of  the  conmiission  was  pending  before 
the  Senate.  ...  No  further  attempt  was  made  by  the  President 
to  urge  the  acquisition  of  San  Domingo  upon  Congress.  It  was 
evident  that  neither  the  Senate  nor  House  could  be  induced  to  approve 
the  scheme,  and  the  Administration  was  necessarih^  compelled  to 
abandon  it.  But  defeat  did  not  change  General  Grant's  view  of  the 
(luestion.  He  h«dd  to  his  belief  in  its  expediency  and  value  with 
characteristic  tenacity. 

''^  In  his  last  annual  message  to  Congress  (December,  187(3),  nearly 
six  3'ears  after  the  controvers}'  had  closed,  he  recurred  to  the  subject,  to 
record  once  more  his  approval  of  it.  '  H  my  view,'  said  he,  '  had  been 
concurred  in,  the  country  would  be  in  a  more  prospei'ous  condition  to- 
day, both  politically  and  financially.'     He  then  proceeded  to  restate  the 


598  sovereignty:  its  acquisition  and  loss.  [§  121. 

question,  iiiul  to  sustain  it  with  the  arguments  which  he  had  presented 
to  Conirross  in  ls7(i  jiiid  1871.  His  last  words  were,  'I  do  not  present 
these  views  now  as  a  recommendation  for  a  renewal  of  the  subject  of 
annexation.  ))ut  I  do  refer  to  it  to  vindicate  ni}'  previous  action  in 
respect  to  it.*  *' 

Blaine,  Twenty  Year:^  ol  (Vrngreys,  II.  458-461. 

Set*  Mr.  Fish,  Sec.  <>f  State,  to  Mr.  Perry,  Commercial  Agent  at  St.  Domingo, 

.Inne  l»i,  1870,  MS.  Inst.  Consuls,  LVII.  412. 
See.  as  to  the  que.«tion   between  President  Grant  and   ^Ir.  Sumner,    Pierce's 

Sumner,   IV.   413  et  seq.;    Davis's  Mr.   Fish  and   the   Alabama   Claims, 

49  et  seij. 
For  the  report  of  the  Wade  commission,  see  S.  Kx.  Doc.  9,  42  Cong.  1  sess. 

••  While  tile  (jucstion  of  annexation  was  pending,  we  had  a  practical 
interest  that  Ilayti  should  abstain  from  fomenting  dissentions  against 
President  Baez  tiy  aiding  or  abetting  adversaries  of  his  among  his  own 
countrymen,  llaving  this  interest,  you  were  instructed  accordingly, 
for  it  was  conceived  to  ))e  the  duty  of  this  Department  not  to  allow  a 
measure  of  the  foreign  policy  of  the  Government  in  respect  to  one 
country  to  be  thwarted  or  endangered  by  the  machinations  of  its 
neigh])or.  That  measure,  however,  whether  for  good  or  for  evil,  was 
defeated  on  another  iield.  Though  for  niany  reasons  we  would  have 
preferred  that  Pn^sident  Baez  should  have  continued  to  be  at  the  head 
of  the  Dominican  Government,  if  this  preference  should  not  have  been 
in  accordance  with  the  wishes  of  his  countrymen,  which  seems  to  have 
V>een  shown  by  the  rcH'ent  result,  we  can  scarcely  be  said  to  be  any 
longer  practically  interested  in  his  ascendancy." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Ba.s.«ett,  Fel).  12.  1874,  MS.  Inst.  Hayti.  II.  21. 

''A  treaty  between  the  Tnited  States  and  the  Dominican  Republic 
was  sigiKHl  at  St.  Domingo  City  on  the  oth  of  October 
^'  last.  [The  treatv  was  amended  by  the  Dominican  Con- 
gress, and  the  ratitications  were  not  exchang«'d.]  An  article  .  .  .  was 
understood  to  ha\('  been  agreed  to  l)y  the  Dominican  plenipotentiaries 
before  the  treaty  was  signed,  but  they  were  ultimately  induced  to  omit  it. 
This  article  ])r()posed  to  grant  certain  privileges  to  the  United  States 
with  referenc*'  to  a  depot  for  ((xd  in  the  bay  of  Samana  for  the  use  of 
the  United  States  steamers.  The  fact  that  the  mail  steamers  between 
New  York.  Aspinwall.  and  San  Juan  del  Norte  usually  pass  the  eastern 
end  of  St.  Domingo  shows  how  desiral)le  such  an  accommodation  would 
be  for  us.  If  you  could  induce  that  (xovei'nment  to  agree  to  such  an 
articlt'  you  would  render  a  material  service.  There  is  reason  to  appre- 
iicnd  that  the  Dominicans  were  deterred  from  acceding  to  our  wishes 
on  this  subject  in  part  by  unfoimded  apprehensions  that  we  purpose  to 
become  a  territorial  proprietor  in  that  quarter,  and  that  if  allowed  any 


§  121.]  PROPOSA.LS    OF    ANNEXATION.  599 

such  privilege.sas  those  desired  the}-  would  ultimately  be  converted  into 
right  of  sovereignty,  contrary  to  the  will  of  the  Dominican  Govern- 
ment. These  apprehensions  .are  quite  unfounded.  The  stipulation 
desired  speaks  for  itself,  apd  if  granted  would  clearly  define  and 
restrict  the  limits  of  the  privilege,  which  do  not  conflict  with  the 
rights  of  sovereignty  of  that  Republic. 

*'  If  it  should  be  found  that  such  a  place  of  deposit  as  is  desired  can 
not  be  obtained  on  Samana  Bay,  the  most  desirable  place  known  here, 
any  other  place  convenient  for  the  purposes  indicated  might  be 
acceptable,  but  we  are  not  aware  of  any,  and  therefore  could  onh^ 
agree  to  accept  a  site  at  Samana.  Should,  however,  the  Government 
of  the  Dominican  Republic  absolutely  refuse  to  lease  the  place  indicated 
and  another  be  offered,  this  Government  might  cause  an  examination 
to  be  made  to  ascertain  its  fitness  for  the  purpose,  but  would  not  treat 
for  it  before  that  was  done,'' 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Elliott,  Oct.  5,  1855,  MS.  Inst.  Special  Mis- 
sions, III.  69. 

See  the  report  of  Captain  George  B.  McClellan,  Aug.  27,  1854,  on  Samana  Bay 
as  a  naval  station,  H.  Ex.  Doc.  43,  41  Cong.  3  sess. ;  S.  Ex.  Doc.  17,  41 
Cong.  3  ses.'j. 

"The  President,  by  the  full  power  which  you  will  herewith  receive, 
has  authorized  3'ou  to  conclude  a  convention  with  the  Dominican 
Republic  for  the  cession  or  lease  of  certain  territory  of  that  Republic 
to  the  United  States.  ...  It  is  expected  that  if  the  cession  should 
be  made  it  will  be  in  full  sovereignt}'  to  the  United  States.  This 
would  of  course  be  preferable  to  a  lease.  If,  however,  you  should 
not  be  able  to  obtain  the  sovereignty,  j^ou  may  stipulate  for  a  lease 
for  the  term  of  thirty  3'ears.  ...  In  the  event  of  a  lease,  also,  an 
article  similar  to  the  separate  one  marked  IV,  hereunto  annexed,  must 
be  included.  During  the  administration  of  General  Pierce  an  effort 
was  made  to  obtain  a  lease  of  land  on  the  bay  of  Samana  as  a  coal 
station  for  passenger  and  naval  steamers,  and  an  ami}'  engineer  was 
sent  thither  in  a  vessel  of  war  for  the  purpose  of  selecting  the  site. 
Unfortunately  the  survey  was  prematurely  made  before  any  arrange- 
ment had  ))een  concluded  with  that  Government  on  the  subject.  The 
desire  of  the  United  States  having  become  known  to  the  representa- 
tives of  some  foreign  states  in  that  quarter,  the}"  had  influence  enough 
to  thwart  our  plans.  The  late  intervention  of  Spain  in  the  Dominican 
Repu})lic  had  its  motive  in  a  jealous}'  of  our  desires  for  a  naval  station 
in  Samana.  It  could  not  be  expected  that  the  proposition  now  under 
consideration  will  succeed,  unless  caution,  secrecy,  and  dispatch  shall 
be  observed  in  carrying  it  into  effect.  .  .  .  Vice-Admiral  Porter, 
of  the  Navy,  will  accompany  you.  It  is  not  to  be  doubted  thai  his 
great  experience  in   foreign  countries  and  especially  his  familiarity 


000  sjovkkf.io.vty:  tt>!  acquisition  and  loss.  [.'121. 

will)  tilt'  rt't^ion  you  :ire  atK)ut  to  visit  Avill  he  found  useful  towards  the 
l)ur))ose  of  your  iMis>i(ni."" 

Mr.  Si'wanl,   Sit.   of  State,   to  .Mr.    K.  W.  Scwanl,    Dec.    17,    18(>(),    MS.    Inst. 

Sjx'cial   Mis^ioiL^;,  II.  151*. 
A  sjifcial  appropriation  for  t lie  secret  service  of  tlie  i)ei)artiiient  of  State  was 

ol)taine(l  for    tlie   purposes  of  this  mission   and   the  carrying  out  o(  its 

(lesitrn.      I  liaiicroft's  Seward,  II.  4S().  ) 

••  It  :ii)i)eai"s  not  ini})rol)al)le  tliat  the  (lovernnient  of  the  Dominican 
l{ei>ut)lic  will  !)(•  desirous  at  some  not  distant  day  of  renewing  these 
neo-otiations  upon  the  basis  of  the  i)ropositions  discussed  with  them  a 
few  weeks  since  at  St.  Hominti-o  by  the  Assistant  Secretary  of  Stat«\ 
The  President,  thei-efore.  l)y  the  full  power  which  is  herewith  trans- 
mitted to  you.  has  authorized  you  to  conchuh^  a  convention  for  tlie 
cession  or  lease  of  [\\c  territory  and  watei's  in  <[uestion,  shoidd  you 
Hnd  it  pi'acticaWle  tt)  do  so.  I'liese  instructions  are  the  same  in  effect 
as  those  which  wer*^  oivcMi  to  Mr.  F.  W.  Seward." 

Mr.  V.  \V.  Seward.  A.-^st.  Sec.  of  State,  to  Mr.  Smith,  commercial  agent,  Santo 
Douiiui.'-o.  Fel).  I'ti,  lS(i7,  MS.  Inst.  Sjyecial  Missions,  II.  43. 

••  The  President  learns  .  .  .  with  much  rei>"ret  that  the  CJovern- 
ment  of  Dominica  has  not  at  the  date  mentioned  [April  8,  1807]  decided 
to  neo-otiate  with  the  TnitiHl  States  for  a  cession  or  lease  of  the  penin- 
sula of  Samana  to  be  occupied  as  a  naval  station,  a  consummation  of 
which  it  is  concciNcd  would  be  altogether  as  beneficial  to  the  Kepu])lic 
of  Donunica  as  it  would  be  to  the  United  States. 

••'rhei'c  woidd  b«>  an  inconvenience  in  leaving  the  ])roposals  of  this 
(iovernment  longer  o})en  to  be  accepted  or  rejected  by  the  Govern- 
ment of  Dominica.  In  the  event,  therefore,  that  when  this  dispatch 
shall  come  to  your  hands  the  Dominican  Govermnent  shall  not  have 
decided  to  ac<-ept  the  pi'oposal  of  the  United  States  in  one  of  the  forms 
in  which  it  i>  exiiressed,  you  will  desist  from  further  pro.secution  of 
the  bu>ine>s.  and  will  gi\-e  notice  to  the  President  that  the  proposals 
of  the  I'nited  States  ai'e  no  longer  in  force.'' 

Mr.  Seward,  Sec.  of  State,  to  :\lr.  Smith,  May  S,  ISti?,  MS.  Inst.  Sj)ecial  Mis- 
i-ioiis,  II.  T)!. 

See,  further,  as  to  Samana  I'>ay,  Mr.  Seward,  Sec.  of  State,  to  Mr.  I'ujol,  Jan. 
Ml,  .lan.l'ti,  and  .lan.L'S,  ISHS,  MS.  Notes  to  Dom.  Rej).  I.  'A,  19,  22;  Mr.  Fish, 
Sec.  of  Stat<'.  to  Mr.  I'.a>sett.  Dec.  22,  1S()<»,  MS.  Inst.  Hayti,  I.  172,  saying: 
■■  Net.'otiatioiis  are  iiemiing  between  the  Fnited  States  and  I^resident  Baez, 
of  till-  l»Miiiinican  Uepulilic,  relative  to  the  P>ay  of  Samana." 

Se.-,  also.  Mr.  F.varts,  S.v.  of  State,  to  Mr.  D.dmonte,  Feb.  lit,  1880,  MS.  Notesto 
Honi.  Uep.  I.  41;  .Mr.  F.laine,  Sec.  of  State,  to  Mr.  Durham,  January  28, 
is'.rj,  MS.  Inst.  Ilayti,  III.  22'.l;  .Mr.  Foster,  Sec.  State,  to  Mr.  Gets,  July 
;'.(»,  ls<)2,  1S7  MS.  I>om.  Let.  400. 


§§  122-123.]  PROPOSALS    OF    ANNEXATION.  601 

(7)    ISLANDS    OF    CITLEBRA    AND    lULEBRITA. 

§  122. 

Mr.  Georo-e  Bancroft  was  instructed,  in  1867,  while  proceeding  as 
minister  to  Berlin,  to  go  by  way  of  Madrid  and  sound  the  Spanish 
Government  as  to  the  cession  of  the  islands  of  Culebra  and  Culebrita, 
in  the  Spanish  West  Indies,  to  the  United  States  as  a  naval  station. « 
"  The  result  of  Mr.  Bancroft's  explorations  was  so  discouraging  that 
the  subject  was  peremptorily  dropped."  '' 

(8)    DANISH    WEST    INDIES. 

^  123. 

"The  first  negotiations  of  the  United  States  for  the  purchase  of  the 
Danish  Islands  were  begun  by  Mr.  Seward,  then  Secretary  of  State,  in 
January,  1865,  at  least  so  it  is  supposed.  There  is  mention  in  contem- 
porary pamphlets  of  a  dinner  party  at  the  French  embassy,  where  Mr. 
Seward  first  expressed  to  General  Raasloff ,  the  Danish  charge  d'aifaires, 
the  desire  of  the  United  States  to  buy  th(^  Danish  Islands  in  the  Antilles. 
xVfterwards  other  conferences  followed  of  an  unofficial  character,  Mr. 
Seward  urging  the  Danish  minister,  who  replied  that  Denmark  had 
no  desire  to  sell  the  islands.  Great  secrecy  was  insisted  upon  and 
preserved.  This  was  under  the  Presidency  of  Lincoln.  General 
Raaslott',  who  was  himself  opposed  to  the  sale,  reported  these  inter- 
views to  his  Government,  who  replied  that  it  would  l)e  advisable  to 
drop  the  negotiations,  as  the  Danish  Government  had  no  desire  to  part 
with  these  colonies.  Mr.  Seward's  carriage  accident,  consequent  illness, 
and  temporary  incapacity  for  pu])lic  afi'airs  confirmed  this  attitude  on 
the  part  of  Denmark. 

"  In  April  came  the  assassination  of  the  President,  the  wounding  of 
Mr.  Seward,  and  the  accession  of  Mr.  Jolinson  to  the  Chief  Plxecutive. 
Mr.  Seward's  recovery  was  slow,  and  it  was  not  until  Decem))er,  1865, 
on  the  eve  of  his  departure  for  the  South,  a  journ(\v  taken  to  restore 
his  health,  that  the  Secr(>tary  of  State  again  mentioned  the  matter  to 
General  Raaslofi'.  The  complexion  of  afi'airs  was  now  somewhat  altered. 
A  new  ministry  had  come  into  power  at  Copenhagen,  and  it  was  less 
opposed  to  the  sale  than  the  former  one  had  been.  Hence,  a  note  to 
Mr.  Seward  declaring  that  although  the  Government  had  no  desire  to 
sell,  still  it  was  not  unwilling  to  entertain  the  Secretary's  propositions. 

"^h:  Seward,  8ei-.  of  State,  to  Mr.  Bancroft,  niin.  to  I'rnssia,  May  29,  1867,  MS. 
Inst.  Prussia,  XIV.  465;  Mr.  Seward,  Sec.  of  Sttite,  to  Mr.  Hale,  iniii.  to  Spain,  May 
29,  1867,  MS.  Inst.  Spain,  XVI.  593;  Mr.  St-ward,  Sec.  of  State,  t<.  Mr.  Bancroft, 
min.  to  Prussia,  Aujjust  8,  1867,  MS.  Inst.  I'russia,  XIV.  477. 

^Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  inin.  to  P'ngland,  October  28,  1867, 
MS.  Inst.  Gr.  Br.,  XXI.  286.  The  islands  ahove  referred  to  passed  to  tlie  United 
States  with  Porto  Rico  and  other  Spanish  islands  in  the  West  Indies  under  the  treaty 
of  December  10, 1898.     See  Knox,  At. -Gen.,  Oct.  25,  1901,  23  op.  564. 


602  sovereignty:  its  acquisition  and  loss.         [§  123. 

A  nHjiu'st  was  nuido  that  tho  I'nited  States  declare  how  much  it  was 
willintr  to  «»'ive. 

"Mr.  Seward  departed,  and  during  his  absence  visited  St.  Thomas 
and  convinced  himself  of  the  necessity  of  the  purchase." 

Report  of  Mr.  Liuige,  Committee  on  Foreign  Relations,  March  31,  1898,  S. 
Doc.  284.  57  Cong.  1  sess.  18. 

Jidy  0.  I860.  Mr.  Seward  wrote  to  the  Secretary  of  War  that  it  was 
"deemed  desirable  to  ascertiiin  officially  and  authentically  the  value 
to  the  United  States,  especially  for  military  and  naval  ]nirposes,  of 
the  Danish  West  India  Islands,  supposing  that  we  should  acquire  a 
title  to  them."  It  was  therefore  requested  that  an  officer  should  be 
detailed  to  proceed  thither  for  the  purpose  of  examining  and  reporting 
upon  the  subject,  or  that  such  other  measures  should  be  adopted  as 
might  seem  best  to  that  end.-' 

Ten  days  later  ]\Ir.  Seward  officially  proposed  to  General  Raasloff, 
the  Danish  minister  at  Washington,  a  negotiation  "for  the  purchase  of 
the  Danish  Islands  in  the  West  Indies,  namely,  St.  Thomas  and  the 
adjacent  islets,  Santa  Cruz  and  St.  John,''  for  ^5,000,000  in  gold,  pay- 
able in  the  United  States,  the  "negotiation  to  be  by  treaty,  which  vou 
will  of  course  undersbmd  will  require  the  constitutional  ratification  of 
the  Senate."'' 

General  Raaslotf  soon  afterwards  returned  to  Denmark,  where  he 
became  minister  of  war,  and  the  negotiations  were  carried  on  at 
Copenhagen  by  Mr.  Yeaman,  United  States  minister  at  that  capital, 
and  Count  Frijs,  Danish  minister  of  foreign  affairs,  and  General  Raas- 
loff. In  addition  to  written  instructions  transmitted  in  the  usual 
course,  telegraphic  instructions  were  occasionally  sent  to  Mr.  Yeaman 
through  Mr.  Adams,  then  United  States  minister  at  London.'' 


"Mr.  Seward,  Sec.  of  State,  to  Mr.  Stanton,  July  6,  186(),  MS.  Inst.  S|)ecial  3Iis- 
eions.  111.  i;}7. 

''Mr.  Sewanl,  Sec.  of  State,  to  (ieii.  Raaslof,  July  17,  1866,  MS.  Notes,  Danish 
Leg.,  VI.  :{:{7. 

'  "  <  ifiierai  Raiisloff  .  .  .  after  liis  arrival  at  Copenhagen  .  .  .  was  appointed 
mini.-^ter  of  war,  and,  in  the  work  of  reorganizing  the  Danish  army,  lost  sight  of  affairs 
in  America.  Count  Frijs,  the  Danisli  niini.ster  for  foreign  affairs,  who  consequently 
now  hail  charge  of  the  Tiegotiations,  was  in  favor  of  the  sale,  but  still  the  affair 
draggt-d  until  Jamiary  li»,  1S67,  when  Mr.  Yeaman,  United  States  minister  at  Copen- 
hagen, received  the  following  telegram  from  Mr.  Seward:  'Tell  Raasloff  ha.ste 
important.'  However,  notliing  was  done  for  two  months.  Denmark  felt  a  good 
deal  of  hesitation,  owing  to  tiie  uncertainty  of  the  treaty  being  ratifie<l  by  the  Sen- 
ate, but  slie  Itecame  more  a.-'sured  l)y  the  absence  of  opposition  in  the  United  States 
to  tlie  pnrcha.«e  scheme  and  by  the  speedy  ratification  of  the  Alaska  purcha-e  treaty. 
Nevertlieless,  at  the  end  of  two  months  Mr.  Seward  telegraphed  again  to  Mr.  Yea- 
man: 'Want  yea  or  nay  now.'  Mr.  Yeaman  at  once  communicated  with  General 
Kaasldf,  1>ut  it  was  not  until  the  17th  of  May,  1867,  that  Count  Frijs  made  a  counter 
pnii..)-itii)n  to  Mr.  Seward's  note."  (Report  of  Mr.  Lodge,  Com.  on  For.  Rel., 
March  31,  1898,  S.  Doc.  284,  57  Cong.  1  sess. ) 


§  123.]  PROPOSALS    OF    ANNEXATION.  603 

The  difficulties  in  the  wa}^  of  the  cession  arose  partl}^  from  senti- 
ment, parti}'  from  the  attitude  of  third  powers,  and  parth'  from  the 
question  of  price.  The  Danish  cabinet  at  leng^th  decided  to  make  a 
counter  proposition  to  cede  the  three  islands  for  115,000,000,  or  the 
islands  of  St.  Thomas  and  St.  John  for  $10,000,000,  in  case  France 
should  refuse  her  consent  to  the  transfer  of  Santa  Cruz.  It  was  also 
stated  that  the  treaty  must  be  ratified  by  the  Rigsdag,  and  that  the 
consent  of  the  people  of  the  islands  must  be  obtained,  and  the  request 
was  made  that  the  negotiations  should  l)e  conducted  at  Copenhagen 
and  not  at  Washington,  as  Mr.  Seward  had  desired." 

Mr.  Yeaman  was  duly  instructed  as  to  this  proposition,  and  was 
furnished  with  full  powers  and  a  draft  of  a  convention.  The  United 
States  would  pa}'  $7,500,000  for  the  three  islands,  and  the  treaty 
might  be  signed  at  Copenhagen;  but  no  stipulation  was  to  be  admitted 
for  a  vote  of  the  people  of  the  islands,  though  a  provision  might  be 
inserted  allowing  them  two  years  in  which  to  depart,  if  they  preferred 
to  retain  their  original  allegiance.  The  treaty  must  be  ratified  by  the 
Rigsdag  before  Aug.  4,  1867,  and  by  the  United  States  Senate  before 
May,  1868,  the  ratifications  to  be  exchanged  at  Washington.* 

The  Danish  negotiators  declared  the  consent  of  the  people  of  the 
islands  to  be  indispensable,  and  they  declined  to  bind  their  Govern- 
ment to  ratify  the  convention  in  advance  of  the  United  States.  They 
offered,  however,  to  take  $7,500,000  for  St.  Thomas  and  St.  John,  and 
half  as  much  for  Santa  Cruz,  should  France  consent  to  the  sale  of  the 
latter.^" 

Mr.  Yeaman  was  instructed  to  accept  the  offer  of  St.  Thomas  and 
St.  John  for  $7,600,000,  but  Mr.  Seward,  while  urging  that  prompt- 
ness was  essential  to  the  success  of  the  negotiation  and  the  acceptance 
of  its  results,  refused  to  yield  the  point  of  the  vote.''     Indeed,  as  late 

«Mr.  Yeaman  to  Mr.  Seward,  No.  65,  April  30,  1867  (confidential).;  No.  67,  May 
17,  1867  (confidential);  No.  69,  May  27,  1867.  The  question  raised  as  to  the  cession 
of  Santa  Cruz  grew  out  of  the  provisions  of  Art.  V.  of  the  convention  signed  at 
Copenhagen  June  15,  1733,  by  which  France  ceded  the  island  to  the  Danish  "West 
Indies  Company.  That  article  translated  reads  as  follows:  "As  His  Most  Christian 
Majesty  has  a  particular  interest  that  the  said  island  shall  not  pass,  under  any  title 
whatever,  to  other  nations,  the  Danish  company  engages  and  obligates  itself,  in  the 
most  formal  and  authentic  manner,  neither  to  sell  nor  to  cede  it  on  any  terms  to  any 
other  nation  without  the  approval  and  consent  of  His  Most  Christian  Majesty." 
(De  Clen;q,  Recueil  des  Traites  de  la  France,  XV.  Supplement,  5.  "Art.  V.  Comme 
S.  M.  T.  C.  a  un  interet  particulier  A,  ce  que  ladite  isle  ne  passe  point,  h  quelque 
titre  que  ce  soit,  a  d'autres  nations,  la  Compagnie  danoise  s'engage  et  s'oblige,  en 
la  maniere  la  plus  formelle  et  la  plus  authentique,  a  ne  la  vendre  ni  la  ceder  en 
aucun  terns  a  nuUe  autre  nation,  sans  I'approbation  etleconsentementde  S.  M.  T.  C") 

''Mr.  Seward,  Sec.  of  State,  to  Mr.  Yeaman,  IVIay  27,  1867,  MS.  Inst.  Denmark, 
XIV.  276;  Mr.  Yeaman  to  Mr.  Seward,  No.  73,  June  7,  1867;  No.  74,  June  13,  1867; 
MSS.  Dept.  of  State. 

cMr.  Yeaman  to  Mr.  Seward,  No.  75,  June  17,  1867,  MSS.  Dept.  of  State. 

dMr.  Yeaman  to  Mr.  Seward,  No.  81,  July  12,  1867;  No.  84,  July  22,  1867;  Mr. 
Seward  to  Mr.  Yeaman,  Aug.  7,  1867;  MSS.  Dept.  of  State. 


004  sovereignty:  its  acquisition  and  loss.         [§  123. 

as  So])t.  ;■).  1S«;7.  Mr.  Soward  insisted  that  "in  no  case  must  [the  sub- 
jcrt  of  the]  vote  be  mentioned  in  [thej  treaty,"  though  he  waived  any 
objcrtion  to  Denmark's  taking  a  vote  outside  of  the  treaty." 

••  I  have  the  honor  to  acknowledge  the  receipt  of  3'our  despatches  of 
the  .'.th  of  September,  No.  98,  and  of  the  Tth  of  September,  No.  100. 

**In  regai'd  to  the  notoriety  which  the  negotiation  to  which  3^ou 
refer  has  attained,  it  is  necessary  to  rememl)er  that  the  liabits  and 
practice  of  republican  government  always  render  even  a  temporary 
sil(Mice  concerning  important  measures  of  policy  suspicious  and  gener- 
ally im])ossible.  The  press  of  all  civilized  nations,  now  universally 
eni})loving  the  agency  of  the  telegraph,  has  unavoidably  and  properly 
IxH-ome  a  com])ination  of  great  power,  and  is  always  more  active  in 
procuring  facts  which  are  involved  in  any  uncertainty  or  mystery  than 
in  disseminating  authentic  information  about  which  there  is  no  effort 
at  conceaIin«>nt.  The  difficulty  which  it  was  foreseen  would  attend  the 
pi-eservation  of  confidence  between  the  two  Governments  in  regard  to 
the  negotiations  has  been  one  of  the  strongest  motives  upon  our  part 
for  urging  spinnly  decision  upon  the  Government  of  Denmark. 

*•  As  the  case  stands,  it  seems  to  me  now  more  extraordinary  that 
so  little  of  the  negotiations  has  transpired  than  it  is  that  our  proceed- 
ings havt^  not  remained  altogether  confidential. 

"You  mention  in  your  98  that  you  have  reason  to  believe  that  the 
Danish  (lovernment  now  regret  their  having  dissevered  the  proposi- 
tion by  assenting  to  sell  St.  Thomas  and  St.  .Fohn,  with  the  reserva- 
tion of  Santa  Cruz.  You  inform  me  further  that  in  your  opinion  the 
Danish  (rovermncnt  would  now  nuich  desire  that  their  own  propo- 
sition for  the  sale  of  the  three  islands  should  be  reinstated  and 
accepted.  You  assign  the  reasons  upon  which  this  opinion  is  founded, 
namely,  that  the  relations  of  the  (xovernment  Avith  the  inhabitants  of 
tht^  islands,  with  tli(^  people^  of  D(>nmai"k,  with  the  legislature  of  that 
country,  and  with  France  could  be  more  successfully  managed  by 
making  a  cession  of  jijj  than  ])y  a  cession  of  the  two  islands  of  St. 
Thomas  and  St.  John.  Impressed  with  this  opinion,  you  imply 
rathei-  than  ex])ress  a  i-cconuneiidation  that  we  shall  open  the  question 
and  accept  the  cession  of  the  three  islands  upon  the  Danish  terms. 

'"The  President  lias  at  no  time  entertained  a  dou))t  that  the  division 
of  our  original  pi'opositioti.  so  as  to  exclude  Santa  Cruz  from  the 
negotiation,  would  ])i<)ve  a  hindrance  in  Denmark.  Me  remains  of 
the  opinion  that  our  proi)(jsiti(>n  was  well  conceived,  having  reference 
to  our  situation  at  the  time  it  was  made.  Circumstances,  however, 
secui  now  t(5  have  changed.  1  h'ave  out  of  view  parallel  negotiations 
in  otiier  (luaitcis.       In   tiie  ])ur(hasc  of   Russian   America,  we  have 

"Mr.   Sfwanl  to  Mr.  Yeainan,  telegram,  Sept.  ."5,  1S67,  M.S.  Inst.  Denmark,  XIV. 

2SS. 


§  128.]  PROPOSALS    OF    ANNEXATION.  605 

invested  a  considerable  capital  and  incurred  the  necessity  for  a  large 
expenditure.  The  desire  for  the  ac<[uisition  of  foreign  territory  has 
sensibly  abated.  The  dela3's  which  have  attended  the  negotiation, 
notwithstanding  our  urgency,  have  contributed  to  still  farther  allevi- 
ate the  national  desire  for  enlargement  of  territory'.  In  short,  we 
have  already  come  to  value  dollars  more  and  dominion  less. 

"  Under  these  circumstances,  it  would  be  more  difficult  now  than  it 
has  heretofore  been  to  accept  the  three  islands  at  the  price  which  is 
set  upon  them  by  the  Government  of  Denmark.  The  best  we  could 
do  now,  would  l)e  to  accept  the  two  upon  the  terms  which  seem  to 
have  t)een  agreed  upon.  I  do  not  hesitate  to  sa}'  that  procrastination 
of  the  negotiation,  even  for  those  two  islands,  may  wear  out  the  popu- 
lar desire  for  even  that  measure  of  jjartial  acijuisition. 

'•The  Danish  negotiators  have  asked  us  to  consider  that  the  halnts 
of  Demuiirk  are  *low.  Surely  the  statesmen  of  that  country  can  well 
understand  that  on  the  contrary  in  the  United  States  all  political  move- 
ments necessarily  require  vigor  and  promptitude.-' 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Yeaman,  Sept.  1'8,  1867,  MS.  Inst.  Den- 
mark, XIV.  294. 

In  a  confiilential  instruction  to  Mr.  Yeaman  of  Sept.  28,  18(57,  ^Mr.  Seward, 
referring  to  a  ccjmmunic-ation  which  he  had  received  directl}-  from  (jen. 
Haasloff,  said:  "We  can  not  now  modify  our  previous  instructions  without 
putting  the  negotiation  in  great  jeopardy.  Procrastination  has  al)ated  an 
interest  which  was  at  its  lieight  when  we  came  successfully  out  of  a  severe 
civil  war.  Xo  absolute  need  for  a  naval  station  in  tlieWest  Indies  is  now 
experienced.  Nations  are  prone  to  i)Ostpone  provision  for  distant  contin- 
gencies. Besides,  other  and  clieaper  projects  are  widely  regarded  as  feas- 
ible and  equally  or  more  advantageous.  If,  with  reference  to  the  pre.sent 
negotiation  for  the  two  islands,  it  is  nece.ssary  or  convenient  to  the  Danish 
Government  that  there  shall  at  the  same  time  be  pending  a  question  of  an 
ultimate  transfer  of  a  third  island,  let  the  Danish  (iovernment  send  us  a 
protocol  through  your  legation,  to  be  dealt  with  as  on  consultation  we 
shall  find  practicable  and  expedient."     (MS.  Inst.  Denmark,  XIV.   297.) 

October  5,  1S»I7,  Mr.  Seward  cabled  Mr.  Yeaman  to  waive  the  objec- 
tion to  a  popular  vote  and  to  consent  that  one  might  l)e  taken  at  the 
instance  of  Denmark.  These  instructions  were  reiterated  by  telegraph 
on  the  24th  of  October,  with  a  request  to  report  progress." 

A  convention  for  the  cession  of  St.  Thomas  and  St.  flohn  for 
ST.500.OoO.  with  stipulations  for  a  popular  vote  and  for  the  admission 
of  the  inhal)itants,  in  case  of  annexation,  to  the  rights  of  citizens  of 
the  United  States,  was  concluded  at  Copenhagen,  Oct.  24.  ISOT.''  The 
Russian  minister  at  Copenhagen  offered  ^Ir.  Yeaman  his  congratula- 
tions; the  French  minister  .said  nothino-;  the  Prussian  minister  observed 


"Mr.  Seward,  Sec.  of  State,  to  3Ir.  Yeaman,  Oct.  24.  lSti7,  MS.  Inst.  Denmark, 
XIV.  .300;  same  to  .«ame,  Oct.  2.5,  1867,  id.  .301. 

''Mr.  Yeaman  to  Mr.  Seward,  Oct.  25,  1867;  :Mr.  Seward  to  Mr.  Yeaman,  Oct.  26, 
Oct.  30,  Oct.  31,  and  Nov.  15,  1867,  MSS.  Dept.  of  State,  XIV.  304,  .305,  307. 


(U)(i  sovereignty:  its  acquisition  and  loss.  [§123. 

that  it  l()ok«>d  iis  if  the  rnited  States  expected  .soon  to  need  great  naval 
faiilitics.  ill  whiih  case  the  ac(iuisition  would  })e  of  great  advantage; 
the  Hi-itisli  minister  coui)led  with  his  felicitations  a  jesting  remark 
about  (Treenlaiid  and  koland;  the  Spanish  minister,  while  congratu- 
lating Mr.  Yeaman  j)ersonally  on  the  success  of  the  negotiations, 
declared  that,  for  himself  and  his  Government,  he  did  not  like  it.^* 

•"A  strong  current  of  economical  sentiment  in  regard  to  our  finances 
has  set  in  during  the  autunui,  and  it  has  since  increased  in  volume  and 
in  force.  W(>st  India  accessions  in  harmony  with  the  so-called  Mon- 
roe doctrine,  are  still  deemed  inij)ortant,  but  there  is  so  strong  a  dis- 
position to  retrench  that  the  treaty  for  St.  Thomas  and  St.  flohn  is  not 
unlikely  to  labor  in  the  Senate  just  as  the  transaction  itself  has  labored 
in  the  country. 

"However  illogical  it  may  seem,  public  opinion  has  been  much  dis- 
turl)ed  hy  the  recent  terrible  displays  of  hurricanes  and  earthquakes 
in  the  lands  and  waters  of  the  Virgin's  Islands. 

"These  phenomena  even  brought  confusion  into  the  councils  of 
GoNcrnor  Carstenstcn,  when  he  was  proceeding  to  take  the  public  vote 
of  St.  Thomas.  He  conceded  dela}';  that  delay  is  now  a  subject  of 
iiuiuiry  and  a  cause  of  hesitation  here. 

"The  lapse  of  time,  however,  always  tranquilizes  political  excite- 
ment, just  as  it  brings  natural  quiet  after  hurricanes,  volcanoes,  and 
eartluiuakes. 

"  1  hear  from  St.  Thomas  that  there  is  no  doubt  of  a  favorable  vote 
there,  on  the  i*th  of  January  next,"' 

Mr.  Steward,  Sec.  of  State,  to  ^Ir.  Yeaman,  Dec.  30,  1867,  MS.  Inst.  Denmark 

XIV.  310. 
Mr.  Seward's  refereiu-e  to  "economical  sentiment"   prohal^ly  was  suggested 

hy  a  resolution  of  the  House,  declarinjr,  on  financial  grounds,  against  furthejf 

purclia,«es  of  territory.     (Bancroft's  Seward,  II.  485. ) 
The  Rev.  Charle.s  Hawley,  D.  D.,  of  Auhurn,  N.  Y.,  was  sent  as  a  confidential 

agent  to  (Mjoperate  with  the  Danish  authorities  in  taking  the  vote,  while 

Kear-.\dmiral  Palmer  was  tlirected  to  proceed  in  his  flag-ship,  the  U.  S.  S. 

Siis(|uehanna,  to  St.  Thoma.s  to  await  there  the  progress  of  events.     (Mr. 

Scwanl,  Sec.   of  State,  to  Mr.    Hawley,  Oct.    26,  1867,   MS.   Inst.   Special 

Mis.-^ions,  III.  174;    to  Mr.  Yeaman,  Oct.  80  and  Oct.  31,  1867,  MS.  Inst. 

Denmark.  XIV.  304,  :;o.").) 
The  vote  in  St.  Thomas  stood  1,030  to  22  for  annexation;  in  St.  John,  205 

votes  were  cast,  all   for  annexation.      (Parton,  "The  Danish  islands:    are 

we  lM)und  in  honor  to  i)ay  for  them?"     38-30.) 

"Tile  treaty  of  the  cession  of  St.  Thomas  and  St.  John  was  sub- 
mitted by  the   President,  to  the  Senate,  on  the  3d  day  of  December 

"Mr.  Yeaman  to  Mr.  Seward,  Nov.  8,  1867,  MSS.  Dept.  of  State.  Air.  Yeaman 
refers  in  this  dispatch  to  the  i)uhlication  of  tlie  provisions  of  the  treaty.  See  Mr. 
Sewanl  to  Mr.  Yeaman,  Oct.  31  and  Nov.  15,  1867,  a])proving  the  conduct  of  the 
n<  trot iat ions;  al.>^o.  a.^  to  propose<l  supplemental  articles,  relating  to  Santa  Cruz,  Mr. 
Seward  to  Mr.  \"eamaii,  Dec.  16  and  Dec.  .30,  1867,  MS.  Inst.  Denmark,  XIV.  374,310. 


§  123.]  PROPOSALS    OF    ANNEXATION.  607 

last;  the  Senate  were  afterwards  promptly  advised  by  the  President  of 
the  vote  of  the  people  of  the  islands  in  favor  of  annexation.  Inso- 
much as  this  is  the  so-called  long  session  of  Congress,  no  inference 
unfavorable  to  the  success  of  the  treaty  can  be  drawn  from  the  delay 
of  its  consideration  in  the  Senate.  On  the  8th  day  of  January  instant, 
a  special  envoy  of  the  Dominican  Republic  arrived  here  to  inform  us 
that  that  Gov^ernment  had  reconsidered  its  rejection  of  our  propositions 
for  the  purchase  of  Samana,  and  desired  now  to  agree  upon  terms  of 
cession.  It  was  due  to  the  Senate  and  to  the  country,  to  give  a  fair 
consideration  to  the  Dominican  j  "oposition.  That  subject  is  therefore 
now  under  discussion  in  this  Department.  It  is  not  unlikely  that 
the  Senate  will  prefer  to  wait  for  the  result  of  my  conferences  with  the 
Dominican  minister  before  proceeding  to  a  final  consideration  of  the 
Danish  treaty.  Certainly  the  treaty  for  St.  Thomas  and  St.  John 
loses  nothing  in  popular  favor  by  a  free  examination  upon  its  merits." 

]\Ir.  Seward,  Sec.  of  State,  to  Mr.  Yeaman,  Jan.  29,  1868,  MS.  Inst.  Denmark, 
XIY.  313. 

'"I  have  your  private  letter  of  the  2d  of  January,  for  which  1  give 
3'ou  my  thanks.  I  should  regret  if  you  were  disturbed  by  the  reflec- 
tions and  criticisms  concerning  the  progress  of  the  negotiation  for  the 
Danish  islands  to  which  you  allude.  It  may  well  be  understood,  once 
for  all,  that  no  new^  national  policy,  deliberately  undertaken  upon  con- 
siderations of  future  advantage,  over  finds  universal  favor  when  first 
aimounced.  If  it  were  otherwise,  and  if  the  public  in  every  nation 
were  so  well  informed  as  to  be  prepared  to  accept  a  policy  of  that  sort 
immediately  upon  its  announcement,  it  would  be  diflicult  to  conceive 
what  necessity  there  would  be  for  statesmanship.  In  that  case  the 
nation  would  direct  ])eforehand,  and  infallibly,  in  all  cases  what  should 
be  done,  and  what  should  be  loft  undone.  It  is  the  great  advantage  of 
a  free  republic,  that  all  important  subjects  are  examined  in  all  the 
lights,  favorable  and  unfavorable,  in  which  reason,  interest,  prejudice, 
and  passion  can  i)lace  them. 

"Certainly  all  that  could  be  desired,  and  all  that  can  be  expected,  is 
that  decisions  upon  pul)lic  (questions  shall  be  made  within  a  reasonable 
time,  be  wisely  made,  and  shall  receive  universal  acquiescence.  I  am 
not  aware  that  the  Government  of  the  United  States,  although  it  is 
rendered  very  complex  by  internal  checks  and  balances,  has  failed  at 
any  time  to  act  with  not  only  as  much  wisdom  but  also  with  as  much 
promptness  in  the  conduct  of  its  foreign  affairs  as  other  nations  gen- 
erally do. 

"It  is  now  seen  that  it  was  not  necessary  for  Mr,  fFetferson  at  any 
time  during  twelve  years,  to  protest  against  hostile  criticisms  on  the 
purchase  of  Louisiana.  No  one  now  thinks  that  the  Government 
decided  either  rashly  or  unwisely  in  the   acquisition  of   California. 


608  SOVERETQNTV:    ITS    ACQUISITION    AMD    LOSS.  [§  123. 

The  shiirpness  of  criticLsni  upon  the  ac(iuisition  of  Alaska  is  manifestly 
abat«>d  already. 

•'  The  extension  of  the  Ignited  States  into  the  tropical  seas  is  an  affair 
scarcely  less  important  than  either  of  those.  It  would  have  been  won- 
derful if  it  had  escaped  a  searching  popular  investigation." 

Mr.  Sewanl,  Sec.  of  State,  to  Mr.  Yeaman,  Jan.  29,  1868,  "  private  and  confi- 
.lential,"  MS.  Inst.  Denmark,  XIV.  315. 

In  an  in^^trnction  to  Mr.  Yeaman,  Jan.  2,  1868  (MS.  Inst.  Denmark,  XIV. 
312),  Mr.  Sewanl  said:  "It  would  not  be  becoming  for  me  to  entertain 
eorrespondence  with  a  foreign  state  concerning  incidental!  debates  and 
res(iliition.><  in  regard  to  the  treaty  for  the  two  Danish  islands,  while  it  is 
undergoing  constitutional  consideration  in  the  Senate  and  in  Congress." 

Early  in  18(38  the  treaty  was  ratified  by  the  Government  of  Den- 
mark, but.  as  it  still  remained  under  consideration  in  the  Senate  of  the 
United  Sttites,  the  ratifications  could  not  then  be  exchanged. 

.Mr.  Seward,  Sec-,  of  State,  to  Mr.  Y''eaman,  Feb.  20  and  April  10,  1868,  MS. 
Inst.  Denmark,  XIV.  317,  320;  same  to  Mr.  Bille,  Feb.  20,  1868,  MS.  Notes, 
Danish  Leg.  VI.  243. 

"Importtuit  domestic  (juestions  which  have  arisen  at  the  close  of  the 
civil  war  and  in  a  periodical  political  crisis  have  largely  engrossed 
the  attention  of  Congress  and  the  country  during  the  present  3'ear, 
to  the  exclusion  of  external  policies.  Owing  to  this  cause,  as  it  is 
believed,  the  House  of  Representatives  has  thus  far  delayed  proceed- 
ings to  f ultill  the  })eciniiary  conditions  of  the  purchase  of  Alaska,  which 
was  effected  with  so  much  alacrit}'  and  unanimity  in  1867.  The  Senate 
has  delayed  until  the  present  moment  the  consideration  of  the  treaty 
with  Denmark  for  th(;  accjuisition  of  St.  Thomas  and  St.  John. 

■'Some  other  important  treaties  have  been  postponed.  It  is  now 
manifest  that  the  session  of  Congress  is  approaching  its  end.  Judging 
from  existing  indications.  I  think  the  Danish  treaty  will  ))e  left  for 
consideration  until  the  next  session  of  Congress,  while  the  question 
upon  the  .Vlaska  ai)propriation  may  be  expected  to  1)6  decided  before 
the  adjoui-nnient. 

"During  the  I'ccess  of  Congress,  we  shall  be  more  a])le  than  we  are 
now  to  collect  the  public  sentiment  in  regard  to  the  Danish  treat}', 
and  to  consider  whether  any  change  in  the  form  of  the  question  is 
needful  or  (lcsii'aV)lc."* 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Yeaman,  June  2»,  1868,  MS.  Ijist.  Denmark, 
.\IV.  324. 

Congress  having  adjourned  in  the  summer  of  1869  without  action 
l»y  the  Senate  upon  the  treaty,  Mr.  Seward  proposed  to  the  Danish 
miiii>tei-  at  Washington  the  conclusion  of  an  additional  article  extend- 
ing the  time  for  tiie  exchange  of  I'atitications  one  j'ear. 

Mr.  Sewanl,  Sec.  of  State,  to  Mr.  Yeaman,  No.  9.">,  Aug.  17;  No.  96,  Aug.  17; 
and  No.  <»s,  Aug.  27,  1868,  MS.  Inst.  Denmark,  XIV.  329,  330,  331.  In 
his  No.  96,  Mr.  Seward  said:  "There  is  manifest  in  the  public  mind  some- 


§  123.]  PROPOSALS    OF    ANNEXATION.  609 

thing  of  a  reaction  in  favor  of  the  recent  treaty  ac(iuisition.s  of  Alaska  and 
St.  Thomas,  and  for  estabUyliinjti:  reciprocal  trade  with  the  Sandwich 
Islands.  I  do  not,  however,  find  thi.s  reaction  as  yet  sufficient'y  strong  to 
justify  an  expectation  that  the  ad(iition  of  Santa  Cruz,  with  an  increa.se  of 
the  purchase  money  stipulated  in  our  Danish  treaty,  would  probably 
render  it  more  acceptable  to  the  Senate  and  Congress." 

Such  an  ai'ticlo  wa.s  signed  at  Washington,  Oct.  15,  1868. 

:Mr.  Seward,  Sec.  of  State,  to  Mr.  Bille,  Oct.  15,  1868,  MS.  Notes  to  Danish  Leg. 
VI.  249;  Mr.  Bille  to  Mr.  Seward,  Oct.  11,  1868,  :MSS.  Dept.  of  State;  :Mr. 
Seward  to  .Air.  Yeaman,  Nov.  28,  1868,  MS.  Inst.  Denmark,  XIV.  336; 
Mr.  Seward  to  Mr.  Bille,  Jan.  14,  1869,  :\IS.  Notes  to  Danish  Leg.  VI.  255. 

By  another  article,  conchided  at  Washington  Oct.  1-1,  1869,  the  time 
for  the  exchange  of  ratifications  was  still  further  extended  till  April 
14,  1870. 

:Mr.  Fish,  Sec.  oi  State,  to  Mr.  Bille,  Sept.  25,  1869,  MS.  Notes  to  Danish  Leg. 
VI.  277;  same  to  same,  Oct.  13,  1869,  id.  279. 

*•  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the 
12th  instant  in  which  3011  refer  to  the  stipulations  of  the  treat\'  of 
October  2-1,  1867,  between  the  United  States  and  Denmark  and  more 
particularly  to  the  additional  article  signed  on  the  l-lth  da}'  of  October 
last,  whereb}'  the  ratifications  of  the  treaty  were  to  be  exchanged  in 
Washington  on  or  ])efore  this  date.  You  inform  me  in  this  note  that 
you  are  prepared  to  proceed  to  that  exchange  so  soon  as  you  shall  be 
informed  that  it  can  be  made. 

"The  term  limited  for  the  exchange  expires  this  day.  The  Senate 
of  the  United  Stiites  has  not  given  its  adxice  and  consent  to  the  treat}^ 
and  1  am  not  authorized  to  proceed  further  with  reference  thereto. 

*•  In  comnumicating  this  residt  of  the  withholding  by  the  Senate  of 
the  United  States  of  its  advice  and  consent  from  the  treaty  referred 
to,  I  take  leave  to  call  your  attention  to  the  fact  that  in  the  note 
which  my  predecessor,  Mr.  Seward,  addressed  to  his  Excellency  (iren- 
eral  Kaaslofi'.  under  date  Julv  17,  186«),  Mr.  Seward  expressly  indicated 
to  (ieneral  Raaslofi*  that  an\'  treaty  residting  from  the  negotiations 
inaugurated  and  begim  l)y  that  note,  woidd  re([uire  the  constitutional 
action  thereupon  of  the  Senate  of  the  United  States.'' 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bille,  April  14,  1870,  MS.  Notes  to  Danish 
Leg.  VI.  288. 

Mr.  Yeaman,  with  his  dispatch  No.  239,  May  14,  1870,  encloses  a  copy  of  a 
speech  of  (ien.  Raasloff  in  tiie  Higsdag,  explaining,  on  the  ground  of  the 
failure  of  the  treaty,  his  resignation  from  the  Danish  cabinet,  as  minister 
of  war  and  the  navy.  He  adverts  to  the  fact  that,  after  tiie  ratification 
of  the  treaty  by  Denmark,  he  i)roceeded,  at  the  reijuest  of  his  Government, 
to  Washington,  with  a  view  to  remove  the  difficulties  which  had  arisen  in 
the  United  States  with  regard  to  the  treaty. 

See  Mr.  Foster,  Sec.  of  State,  to  Mr.  Carr,  Dec.  20,  1892,  MS.  Inst.  Denmark, 
XV.  515;  Mr.  Wharton,  Acting  Sec.  of  State,  to  Sec.  of  Navy,  Aug.  3,  1891, 
182  MS.  Dom.  Let.*653. 

H.  Doc.  551 89 


010  sovp:reignty:  its  acquisition  amd  loss.         [§124. 

•  rin'  treaty  lia<l  no  iliaiiipidn  anions  the  iiieinbers  of  the  Senate  Comiuittee  on 
Foreijrn  Affairs.  .  .  .  The  Senate  deci'led  to  lay  the  treaty  on  the  table; 
.  .  .  Johnson's  term  expired,  and  Hamilton  Fish  became  Secretary  of 
State  iK'fore  all  hope  of  the  treaty  was  abandoned.  ...  In  1870  the 
("onunittif  on  Foreign  Affairs  reported  unaniinonsly  against  ratification, 
and  the  Senate  seems  to  have  given  a  unanimous  accpiiescence  in  that 
opinion."  (Bancroft's  Seward,  II.  486,  citing  Pierce's  Sumner,  IV.  623, 
.S2;t,  ()24. ) 

See,  also.  Schuyler's  Am.  Dij).  23;  "The  St.  Thomas  Treaty;  a  Series  of  Letters 
to  the  Boston  Daily  Advertiser,"  New  York,  186!>;  Parton's  The  Danish 
Islands,  Boston,  1869. 

In  !i  coiitidentiiil  dispatch  of  Novein))cr  28,  1892,  Mr.  Carr,  then 
niitiistir  of  the  United  States  at  Copenhagen,  .stated  that  he  was 
iiiiotlicially  authorized  to  say  that  the  Danish  (xovernment  would  fav- 
orably consider  a  proposal  from  the  United  States  to  revive  the 
convention  of  1807."  Mr.  Foster,  as  Secretary  of  State,  expressed 
appreciation  of  the  friendly  attitude  of  Denmark,  but  declared  that, 
in  \  iew  of  the  ap})roaching  end  of  the  Administration  then  in  power, 
the  consideration  of  the  subject  at  the  moment  was  impracticable, 
lie  added,  however,  that  the  ((uestion  of  the  ac(iuisition  of  the  islands 
was  "one  of  far-reaching  and  national  iujportaiice,  the  extent  of  which 
is  appreciated  by  no  one  more  than  the  President."^ 

A  similar  intimation  as  to  the  favomble  disposition  of  Denmark  was 
con  .eyed  to  the  Unitinl  States  in  189B,  and  informal  discussions  took 
pla((^  at  Copenhagen  and  in  Washington.''  Jamiary  24,  1902.  a  con- 
\ciition  was  signed  at  Washington  by  Mr.  Hay,  Secretarv  of  State 
and  Mr.  Brun.  Danish  minister,  for  the  cession  to  the  United  States 
of  "the  islands  of  Saint  Thomas,  Saint  John,  and  Sainte  Croix,  in  the 
West  Indies,  with  the  adjacent  islands  and  rocks,''  for  the  sum  of 
s.'..tioi  1.0(10.''  The  convention  was  ratified  I)}' the  I'nited  States  Senate 
February  17,  1'.«<I2.  The  treaty  Avas  approved  by  the  lower  house  of 
tlie  Danish  Higsdag:  but,  Oct.  21,1902,  the  Landsthing  (the  upper 
house)  by  a  vote  of  32  to  32  declined  to  ratify  it. 

(9)    MOLK    ST.    NICOLAS. 

;;  124. 

••Successive  Administrations  have  labored  to  secure  a  West  Indian 

na\al  station.      During  the   war  of  the  rebellion   the   United   States 

leased  the  harbor  of  St.  Nicolas  from  Hayti  for  this  purpose." 

Ufport  of  Mr.  bodge,  from  the  Committee  on  Foreign  Relations,  March  31, 
1S«»S,  S.  Dor.  2S4.  o7  Cong.  I  sess.  19. 


'  S.  Doc.  284.  r)?  Cong.  1  sess.  20. 

'Mr.    Foster,  Sec.  of  State,  to  Mr.  Carr,  iiiiii.  to  Denmark,  confidential,  Dec.  20, 
l^'.'L',  S.  |),,c.  284    .'.7  Cong.  1  .sess.  22. 
S.  hnr.  •_'S4,  ")    Cong.  1  sess.  24-25. 

•S.  I)  ■<•.  i's4,  .-,7  C<»ng.  1  sess.  In  this  document  will  be  found  the  report  of  Mr. 
<  nil. Mil.  fn.iii  the  Committee  on  Foreign  Relations,  Fel).  5,  1902,  in  favor  of  the 
:tp|.rMv;il  of  the  cui veiition.  See,  also,  us  to  the  purchase  of  the  islands  and  the 
;illi-_''d  |parl  of  Captain  Christmas  in  the  transaction,  rejuirt  of  Mr.  Dalzell,  from  the 
>.!'•■  t  (  oimiiiiir..  .,11  i'lircha.^e  uf  the  Danish  West  Indies,  Julv  1,  1902,  II.  Report 
274'.',  57  CoUL'.  1  >e.-s. 


§  1'24:.]  PROPOSALS    OF    ANNEXATION.  611 

In  1882,  and  again  in  1884,  while  Mr.  Frelinghuy.>>en  was  Secretary 
of  State,  the  United  States  declined  to  entertain  a  proposal  from 
President  Salomon,  of  Ha3'ti,  for  the  cession  of  a  naval  station  in  that 
country."  In  18!>1,  however,  Rear-Admiral  Bancroft  Gherardi,  U.  S.  N., 
was  sent  as  special  commissioner  to  Hayti,  to  endeavor,  in  cooperation 
with  the  United  States  minister  at  Port-au-Prince,  to  obtain  a  lease 
to  the  United  States  of  Mole  St.  Nicolas  for  that  purpose.''  The 
Haytian  authorities  objected  to  the  form  of  the  commissioners'  powers.'^ 
This  objection  was  removed  In-  sending  new  powers;  but  the  Ha3'tian 
Government  ultimately  declined  to  entertain  the  American  proposals.-' 
The  American  minister  reported  that  much  excitement  was  caused  in 
Hayti  by  the  presence  of  the  United  States  fleet  at  Port-au-Prince  and 
bv  the  netrotiations  for  the  lease  of  the  Mole.' 


"Supra,  §  100. 

''Mr.  Blaine,  Sec.  of  State,  to  Adiii.  (iherardi,  Jan.  1,  1891,  MS.  Inst.  Hayti,  III. 
160;  Mr.  Blaine,  Sec.  of  State,  to  Mr.  Douglxs.«,  Jan.  1,  1891,  MS.  Inst.  Hayti,  III.  159; 
same  to  same,  Feb.  12,  1891,  id.  109. 

'•Mr.  Blaine,  Sec.  of  State,  to  Admiral  Gherardi,  Feb.  18,  1891,  MS.  Inst.  Hayti, 
III.  171. 

'Olr.  Adee,  Acting  Sec.  of  State,  to  Mr.  Douglass,  May  20,  1891,  MS.  In.st.  Hayti, 
III.  187,  acknowledging  the  receipt  of  the  latter's  dispatch  No.  164,  of  May  7,  1891; 
see,  also,  3Ir.  Blaine,  Sec.  of  State,  to  Adm.  (iherardi,  Fel).  27,  1891,  MS.  Inst.  Hayti, 
III.  172;  Mr.  Blaine,  Sec.  of  State,  to  .^Ir.  I)ougla.ss,  Feb.  28,  1891,  id.  173. 

Olr.  Adee,  Acting  Sec.  of  State,  to  Mr.  Douglass,  May  19,  1891,  MS.  Inst.  Hayti, 
III.  186,  acknowledging  the  receipt  of  Mr.  Douglass'  No.  159,  of  May  2,  1891; 
"Haiti  and  the  United  States,"  by  Mr.  Dougla.ss,  N.  Am.  Rev.,Se])t.  1891,  337,  and 
Oct.,  1891,  4.50:  The  Haytian  (Question,  by  Verax,  New  York,  1891. 

As  to  a  coaling-station  in  Peru,  see  Mr.  Blaine,  Sec.  of  State,  to  Mr.  llurlbut,  niin. 
to  Peru,  Nov.  22,  1881,  and  Dec.  3,  1881,  For.  Kel.,  1881,  948,955;  Mr.  Blaine,  Sec.  of 
State,  to  Mr.  Hicks,  min.  to  Peru,  June  27,  1889,  MS.  Inst.  Peru,  XVII.  388;  Mr. 
Blaine,  Sec.  of  State,  to  Mr.  Hicks,  min.  to  Peru,  tel.,  Dec.  4,  1889,  MS.  Inst. 
Peru,  XVII.  399,  saying:  "Postpone  consideration  of  coaling  station  until  further 
advi.«ed." 

The  Department  of  State  "  has  received  no  recent  information  as  to  the  proposed 
sale  of  the  Galapagos  Islands  by  the  Republic  of  Ecuador  to  (ireat  Britain  or  to  any 
other  P^uropean  power."  (Report  of  Mr.  Hay,  Sec.  of  State,  to  the  President,  Dec. 
13,  1899,  S.  Doc.  41,  56  Cong.  1  sess.) 

See,  generally,  Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Hall.  min.  h>  Cent.  Am., 
April  7,  1884,  18  MS.  Inst.  Cent.  Am.  374;  :Mr.  Hay,  Sec.  oi  State.  t<j  Mr.  Samp.son, 
min.  to  p]cuador,  .\pril  22,  1899,  MS.  Inst.  Ecuador,  I.  569;  same  to  .«ame,  Dec.  11, 
1899,  MS.  Inst.  Ecuador,  II.  15;  .-ame  to  same,  March  28,  1900,  id.  34;  Mr.  Hay,  Sec. 
of  State,  to  Sec.  of  Navy,  Aug.  1,  1900,  246  MS.  Dom.  Let.  653;  Nov.  15,  1900,  249 
MS.  Dom.  Let.  116;  Jan.  18,  1901,  MS.  Dom.  Let. 


CHAPTER  y. 

NATIONAL  JURISDICTION:  TERRITORIAL  LIMITS. 

I.  The  National  Domain.     S  i-~>. 
II.  Tkkritorial  Limit.s. 

1.  Artificiiil  linos.     §  V2(\. 

2.  Mountiiiiis  and  liills.     S  1-7. 
8.  Rivers. 

(1)  Divisional  lines.     §  128. 

(2)  Navigation.     §  129. 

{:V)   National  .streams.     §  l.m 
The  Mississippi. 
The  Ilndsctn. 

(4)  Internationa]  streams.     §  131. 

European  rivers. 
American  rivers : 

St.  Lawrence. 

Yukon.  Porcupine,  and  Stikine. 

St.  John. 

Columbia. 

Uio  (irande  and  the  Colorado. 

La  riata,  I'arana,  Paraguay,  and  Uruguay. 

Amazon. 

Orinoco. 
African  rivers :  Congo  and  Niger. 
Persian  river-Karun. 

(5)  Diversion  of  waters.     §  1.T2. 

Ca.se  of  the  Rio  (irande. 

Niagara  River  and  the  Great  Lakes. 
4.  Straits. 

(  1  I    Divisional  lines.     §  V.V.]. 
(2»    Navigation.     S  V.'4. 

Danish  Sound  dues. 

Straits  of  Fuca. 

Straits  of  Magellan. 

The  Dardanelles, 
a.   Interior  seas  and  lakes.     §  ir>5. 
G.  The  Croat  Lakes. 

(1  »   Jurisdiction.     §  l.''.(!. 
(2)    Fishing  rights.     §  i:',7. 
(.'{)    Navigation.     S  \->X. 

Lakes  Ontario.  Erie.  Huron,  and    Superior. 

Lake  Michigan. 
(4)      7ater  conununications.     §  KJi). 
(.". )    Ise  of  canals.     §  140. 

Treat.v  stii)ulations. 

Question  as  to  tolls. 
012 


CONTENTS   OF    CHAPTER   V.  613 

II.  Territorial  Limits — Continued. 

(j.  The  Great  Lakes — Continued. 

(0)  Rules  of  navif^ation.     §  141. 
(7)    Wreclving  1)1-1  V ilexes.     §142. 

(S)    Limitation  of  naval  forr-es.     §  143. 

7.  Marginal  sea. 

(1)  General  principles.     $  144. 

(2)  I'osition  of  the  Unitetl  States.     §  145. 
C.i)   Discussion  as  to  Cuba.     §  140. 

(4)  British  act.  1878.     §  147. 

(5)  Case  of  the  Costa  Rica  Packet.     §  148. 
((>)   Rule  as  to  fisheries.     §  149. 

(7)  Question  of  defensive  power.     §  150. 

(8)  Revenue  acts.     §  151. 

(9)  Propose<l  extension  of  marine  belt.     §  152. 

8.  Baj-s.     §  1.53. 

Delaware  Bay. 
Bristol  Channel. 
Conception  Bay. 
Chesajieake  Bay. 
Buzzards  Bay. 

9.  Determination  of  boundaries. 

(1)  Political  (piestions.     §  1.54. 

(2)  Rights  of  individuals.     §  155. 

(3)  Accretion.     §  150. 

(4)  Prescription.     §  157. 

III.  Boundaries  of  the  United  States. 

1.  With  the  British  possessions.     §  158. 

2.  With  .Mexico. 

( 1  )    Land  lines.     §  1.59. 
(2)    Water  lines.     §  1(>0. 

3.  The  Philippines.     §  101. 

4.  Samoan  Islands.     §  102. 
IV.  XoRTnE.\STERN  Fish?:ries. 

L  Treaty  of  1782-8:^.     §  103. 

'•  Rights  "'  and  "  liberties." 

The  fisheries  and  the  Mississippi. 

Controversies  of  181.5-1818. 

2.  Convention  of  181.S.     §  K'A. 

Imperial  act  of  1819. 

Nova  Scotian  "  hovering  act."  1836. 

Question  <jf  "  bays." 

"  Headland  "  theory. 

Case  of  the  M'ashUujton. 

Case  of  the  Aif/iiSt 

Strait  of  Canso. 

3.  Reciprocity  treaty.  1.S.54.     §  1()5. 

Its  termination  and  ensuing  controversies. 
Bait  ([uestion. 

4.  Treaty  of  Washington,  1871.     §  100. 

Joint  High  Commi.ssion. 
American  instructions. 
Fishery  articles. 
Halifax  award. 


014  CONTENTS    OF    CHAPTER   V. 

I  \'.     XOKTIIKASTKKN    FlSIIKKIKK (  "t)Ilt  ilUHMl. 

I.  Tn'Mty  (if  W.isliiiij^toii.   1S71.     S  1<>C» — Continued. 

('(nnnicrcial  jirivik'fU's. 

'IVrritoi'ial  waters. 

Fortinic  Hay  ca.^e. 

'rcrniination  of  fisliory  articles. 
~>.  Controversies  (f  1,SS(i-1,s,S,s.     S  Km. 

Case  of  the  Ihiriil   1.  .{(hniis. 

Case  of  the  IJrrrrtt  N/ff/f. 

Case  of  tlie  Mnrhni  GriiiicH. 

Retaliatory  act,  18.S7. 
(i.   Fnratilied  treaty  of  ISSS.     S  1(>8. 

Modus  Vivendi. 

Subseciuent  history. 

V.     WlIALK     FiSIIKKIKS.        S     H>*.*. 
VI.     SKAI.    FiSIlKKIKS. 

1.  Coasts  of  South  .Vnierica.     S  17(\ 

2.  Case  of  the  Fall<land  Islands.     S  171. 
o.  Berin,ir  Sea.     §  172. 

Fkases  of  17'.t!)  and  1821. 

Treaties  of  1S24  and  1.S25. 

Cession  of  .Vlasl^a. 

Seizures  in  1S.S(i. 

I'roposal  of  cooperation,  1887. 

Views  of  .Mr.  I'helps. 

Sei/.ui'es  in  ISS'.I. 

I'ositi<nis  of  Mr.  liiaine. 

Ford  Salisl)ury's  answer. 

.Mr.  IMaine's  contention  as  to  Russian  rights. 

Lord  Salisbury's  ofl'ei'  of  arhitnition. 

(Question  <  f  "  I'acilic  Ocean." 

Modus  Vivendi. 

Treaty  of  .irhitration. 

Question  of  d.-iniages. 

Tril)unal  of  arliitration. 

Russia's  action  in  18!»2. 

.Vward  of  trilmnal. 

Dania^'cs. 

Reirulations. 

I'.ritish-Ru.ssian  arrangement. 
4.   United  Stales  and  Russian  nrhitration.     §  173. 

I  )iii''iniatic  corresiiondence. 

.\wanl. 
VII,   Vksski.s.     S  174. 
.\cts  at  sea. 
Piracy. 

.Vets  in  foreign  waters. 
Civil  liahilitics  on  .\nieriian  vessels. 
(Juano  islands. 


^§  125,  120.]        TERRITORIAL    PROPERTY    OF    THE    STATE.  615 

I.  THE  NATIOXAL  nO.UAIX. 

§  125. 

"  The  territorial  property  of  a  state  consists  in  the  territory  occu- 
pied by  the  state  connnunity  and  subjected  to  its  sovereignty,  and  it 
comprises  the  whok*  area,  whether  of  hind  or  Avater,  included  within 
definite  boinidaries  ascertained  by  occujjation,  prescription,  or  treaty, 
t(^gether  with  such  inliabited  or  iniinhabited  lands  as  are  considered 
to  have  become  attendant  on  the  ascertained  territory  through  occu- 
l)ation  or  accretion,  and.  when  such  area  abuts  upon  the  sea,  together 
with  a  cei'tain  margin  of  water.'' 

Hall  Int.  Law  (4tli  ed.).  §  .".O.  p.  100:  Scott's  Cases  on  Int.  Law.  citing 
lionfils-Faucliiile.  Manuol  de  Droit  Int.  (1804).  §§  482-5 Ut ;  Jellinek, 
Das  Kccht  «lcs  .Modcriicn  Staatcs,  I.  :]~>7>-:HM>\  .Jones,  Index  to  Legal 
Periodicals,  I.  .">4.') ;  Liszt,  Das  Viilkerrecht  systeniatlsch  dargestellt 
(ISt)S).  71-S;!:  Wheaton.  Dana's  ed.  §  ^^■>2. 

As  to  occnpation.  see  supra.  §§  80,  81.  As  to  i)rescription.  see  supra,  §  88. 
As  to  accretion,  see  sui>ra,  §  82.  As  to  semi-sovereign  states  and 
protectorates,  see  sni)ra.  SS  1.'^.  14. 

II.   TJJh'R/TORIAL    LIMITS. 
1.  Artificial  Lines. 

§   12G. 

^Miere  a  treaty  provides  that  the  l)oundary  betAveen  two  countries 
shall  follow  certain  parallels  of  latitude,  or  certain  straight  lines 
I'unning  from  point  to  point,  which  parallels  and  lines  shall  be  sur- 
veyed and  marked  by  conuuissioners  upon  the  land,  and,  as  agreed 
iijion  and  established  by  the  commissioners,  shall  in  all  time  be 
faithfully  respected,  without  any  variation  therein,  unless  by  express 
and  free  consent  of  both  countries,  "  the  monuments  placed  by  the 
commissioners,  or  the  line  as  otherwise  fixed  by  descriptive  words 
icferring  to  natural  objects,  or  by  tlie  drawings  and  maps  of  the 
conuuissioners,  would,  it  is  plain,  be  conclusive  in  all  time  by  force 
of  the  stipulations  of  the  treaty.  It  would  be  the  line  agreed  ujion 
and  established,  even  although  it  should  afterwards  appear  that,  by 
reason  of  error  of  astronomical  observations  or  of  calculation,  it 
varied  from  the  parallel  of  latitude  where  that  was  the  line,  or  in  the 
other  part  did  not  make  exactly  a  straight  line." 

Cusliing,  At.-CJen.  (ISfU'.),  8  Op.  17.V17<J,  referring  to  the  treaty  between 
the  I'nited  States  and  Mexico  of  December  ."iO.  18.">:?.  10  Stat.  10:52. 

See,  as  to  an  error  in  the  "  Old  Line  "  between  the  United  States  and  the 
British  possessions,  at  Rouse's  Point,  Moore,  Int.  Arbitrations.  I.  80. 
112,  im,  129.  i:?.5-l.S<5,  14n-ir>:'..  in  this  case  it  is  to  be  observed  that 
provision  was  made  by  treaty  for  rniniing  the  line,  and  that  it  was 
assnnifHl  that  it  had  never  been  surveyed.  (Moore,  Int.  Arbitrations, 
I.  70-71.) 


()1<>        NATIONAL   JURISniCTION  :    TERRITORIAL    LIMITS.       [§§127,128. 

By  the  troaty  Ix'twotMi  the  United  States  and  Spain,  concluded 
Fel)iiiaiv  22.  islt).  Article  II..  the  boundary  between  the  two  coun- 
(lics.  after  following  the  western  bank  of  the  river  Sabine  from  the 
>ea  to  the  thirty-second  de<rree  of  north  hititude.  was  to  proceed  by 
a  certain  coui-se  to  tiie  Rio  Koxo.  or  Red  River,  and  thence  by  that 
rivei'  westward  "to  the  defrree  of  h)n<ritude  100  west  from  London 
and  '2'-\  from  Washinirton:  .  .  .  the  whole  being  as  laid  down  in 
Melish's  maj)  of  the  I'nited  States.  j)ublished  at  Philadelphia,  im- 
jjroved  to  the  first  of  January.  181S.'"  By  Article  IV.  the  contractina: 
parties,  in  order  "'  to  fix  this  line  with  more  precision,  and  to  place 
the  hnuhnarks  which  shall  desi<;nate  exactly  the  limits  of  both 
nations."  a<ri"«'c(l  to  appoint  commissioners  and  surveyors  **  to  run 
and  mark  the  said  line."  It  was  held  that,  while  Melish's  map  was 
adopted  as  the  basis  of  the  settlement,  and  was  to  have  the  same  etfect 
as  if  it  had  l)een  exi)ressly  made  a  part  of  the  treaty,  yet.  lookin<r  at 
the  entire  instrument,  it  was  clear  that  the  contracting  l^arties 
intended,  as  shown  by  Article  IV.,  that  the  line  should  be  subsecjuently 
fixed  with  more  precision,  and  that,  in  referring  to  the  one  hundredth 
meridian,  they  meant  that  meridian  as  astronomically  located,  and 
not  necessarily  as  it  appeared  in  the  map,  where  it  was  in  fact  laid 
down  fai-  east  of  its  true  i)osition. 

United  States  r.  Texas  (IS!)*;).  1C.2  U.  S.  1.  This  case  related  to  the  ter- 
ritory soiiietiiiies  c-illed  (JrcM"  County,  which  was  chiimed  l»y  Texns. 
It  was  held  not  to  he  within  the  limits  of  that  State,  but  to  be  subicct 
to  the  exclusive  jurisdiction  ot  the  I'nited  States. 

2.    Mountains  ano  Hills. 

^   127. 

"  Where  a  boundary  follows  moimtains  or  hills,  the  water  divide 
constitutes  tlie  frontier." 

Hall.  Int.  Law  Mth  od.).  §  ;W.  p.  127.  This  rule,  while  simple  enough  in 
Itrinciple.  is  often  exceedin.i;ly  ditlicult  of  a]>i)lication. 

As  to  the  (|U('stiun  of  the  "  Hiirhlaiids,"  in  the  northeastern  boundary 
between  ilie  Initcd  States  and  the  Itritish  possessions,  see  M(K)re. 
Int.  Arl>iti-ati(ins.  I.  CVCS.  7S.  l(!(i.  ]()>.).  114.  l.'JI.  ir)S-1(iI. 

As  to  the  quest  inn  iieiween  tlu'  watershed  and  hij^hest  mountain  )>eaks.  in 
the  .\r.i.'cntine-< 'hilean  iioiuidaiy.  see  id.  V.  4S."4. 

As  to  Ili(>  case  of  a  jilateau.  sec  the  r.ritish-l'oi'tu,i:ues«>  arbitration  con- 
cerning' the  boundaries  of  .Manica  land.  id.  V.  4US7i  et  seq. 

.",.     KlVKRS. 
(  1  I     1H\  ISIONAI.    LINKS. 

g  12S. 

"  Where  a  navigable  river  forms  the  boundary  of  conterminous 
>tate>.  the  middle  of  the  channel — the  ff/m/i  ar/itar  or  thalweg — 
i^  generally  taken  a>  the  line  of  their  separation,  the  presumption 


§  128.]  RIVER    BOUNDARIES.  61 7 

of  law  being  that  the  riglit  of  naviofation  is  common  to  them  both. 
But  this  presiim})tion  may  be  rel^utted  or  destroyed  by  aetiial  proof 
of  the  exchisive  title  of  one  of  the  riparian  j^roprietors  to  the  entire 
river.  Such  title  may  have  been  acquired  by  prior  occupancy,  pur- 
chase, cession,  treaty,  or  any  one  of  the  modes  by  which  other  public 
territory  may  be  acquired.  But  where  the  river  not  only  separates 
the  conterminous  states,  but  also  their  territorial  jurisdictions,  the 
thalweg,  or  middle  channel,  forms  the  line  of  separation  through 
the  bays  and  estuaries  through  which  the  waters  of  the  river  flow 
into  the  sea.  As  a  general  rule,  this  line  runs  through  the  middle 
of  the  deepest  channel,  although  it  may  diA'ide  the  river  and  its  estu- 
aries into  two  very  unequal  parts.  But  the  deeper  channel  may  be 
less  suited,  or  totally  unfit,  for  the  purposes  of  navigation,  in  which 
case  the  dividing  line  would  be  in  the  middle  of  the  one  which  is  best 
suited  and  ordinarily  used  for  that  object.  The  division  of  the 
islands  in  the  river  and  its  baj^s  would  follow  the  same  rule." 

•  Ilalleck,  Int.  Law  (Baker's  ed. ).  I-  ITl.  Hall  observes:  "Upon  whatever 
{^rounds  proijerty  in  the  entirety  of  a  stream  or  lake  is  established, 
it  would  seem  in  all  cases  to  carry  with  it  a  right  to  the  opposite 
bank  as  accessory  to  the  nse  of  the  stream,  and  perhaps  it  even  gives 
a  right  to  a  sntHcient  margin  for  defensive  or  revenue  purposes, 
when  the  title  is  derived  from  occui)ation.  or  from  a  treaty  of  which 
the  object  is  to  mark  out  a  ]K)litical  frontier."  See  his  discussion  of 
this  statement,  with  examples,  and  distinctions.  (Hall,  Int.  Law, 
4th  ed.  ll.'S-li'!).) 

When  a  great  river  is  the  boundary  between  two  nations  or  states, 
if  the  original  j^roperty  is  in  neither  and  there  be  no  convention 
respecting  it.  each  holds  to  the  middle  of  the  stream.  But  where  a 
state  which  is  the  origijial  proprietor  grants  the  territory  on  one  side 
only,  it  retains  the  river  within  its  own  domains,  and  the  newly- 
erected  state  extends  to  the  river  only.  In  such  case  the  low-water 
mark  is  its  boundary,  whether  the  fluctuations  in  the  stream  result 
from  tides  or  from  an  annual  rise  and  fall. 

Ilandly  r.  Anthony.  .">  \\'heaton.  .'574. 

In  a  disputed  boundary  case,  in  which  a  state  was  held  to  have  own- 
ership of  soil  and  jurisdiction  in  the  bed  of  a  river,  the  bed  of  the  rixer 
was  defined  to  include  "  that  portion  of  its  soil  w/urh  is  (tltcriKitely 
coiurcd  (1 11(1  left  hare  ((s  there  may  he  an  /ney^ase  or  (Hm'inafion  in  the 
fotpply  of  wafer,  and  a'/iie/i  is  adecpiate  to  contain  it  at  its  anerae/e  and 
mean  staye  daring  the  entire  year,  without  refcrenee  to  the  e.rtraor- 
dinary  freshets  of  the  rrinter  or  sprinr/,  or  the  extreme  droughts  of  the 
summer  or  autun^n!''' 

It  was  also  held  that  in  places  where  the  bank  was  not  defined,  the 


01 S  NATIONAL    JURISDICTION:    TERRITORIAL    LIMITS.  [§128. 

liiK'  iHU>t  1k'  coiitimu'd  up  the  river  on  the  line  of  its  bed,  as  defined 
above. 

state  of  Alnbania  v.  State  of  Georgia.  2:'.  Howard,  .Wo. 

••  When  a  navig:able  river  constitutes  the  boundary  between  two  in- 
dependent states,  the  line  defininir  the  point  at  which  the  jurisdiction 
of  the  two  separates  is  well  established  to  be  the  middle  of  the  main 
channel  of  the  stream.  The  interest  of  each  state  in  the  navigation 
of  the  river  admits  of  no  other  line.  The  j^reservation  by  each  of  its 
equal  riirht  in  the  naviofation  of  the  stream  is  the  subject  of  para- 
mount interest.  It  is.  therefore,  laid  down  in  all  the  recognized 
treatises  on  international  law  of  modern  times  that  the  middle  of  the 
••hannel  of  the  stream  marks  the  true  boundary  between  the  adjoining 
states  up  to  which  each  state  will  on  its  side  exercise  jurisdiction,  [n 
international  law.  therefore,  and  by  the  usage  of  Euroi)ean  nations, 
the  term  '  middle  of  the  stream.'  as  aj)plied  to  a  navigable  river,  is 
the  same  as  the  middle  of  the  channel  of  such  stream,  and  in  that  sense 
the  terms  are  used  in  the  treaty  of  peace  between  (ireat  Rritain. 
France,  and  Sj)ain.  concludeil  at  I'ai-is  in  1708.  By  the  language.  *  a 
line  drawn  along  the  middle  of  the  river  Mississippi  from  its  source 
to  the  river  Iberville.'  as  there  used,  is  meant  along  the  middle  of  the 
channel  of  the  river  Mississippi.     .     .     . 

••  The  reason  and  necessity  of  the  rule  of  international  laAV  as  to 
the  midchaiinel  being  the  true  boundary  line  of  a  navigable  river 
separating  indejiendent  states  may  not  l)e  as  cogent  in  this  country, 
where  neighl)oring  States  are  under  the  same  (ieneral  Government,  as 
in  Europe,  yet  the  same  rule  will  be  held  to  ol)tain  unless  changed  by 
statute  or  usage  of  so  great  a  length  of  time  as  to  have  acquired  the 
force  of  law. 

•"As  we  have  stated,  in  international  law  and  by  the  usage  of 
PLuropean  nations,  the  terms  '  middle  of  the  stream  '  and  '  midchan- 
nel  "  of  a  navigal)le  I'iver  ai"e  synonymous  and  interchangeably  U'^d. 
The  enal)ling  act  of  Ai)ril  IS.  1818.  (H  Stat.  4*28.  c.  C)!.)  under  which 
Illinois  adopted  a  constitution  and  Ix'came  a  State  and  was  admitted 
into  the  I'nioii.  made  f/ir  iniddlc  of  the  .l//.s-.v/.s-.s/y;/>/  U'irev  the  western 
boundary  (d"  the  State.  The  enai)ling  act  of  ]^Iarch  (>.  IS-JO.  (8  Stat, 
c.  -22.  sec.  -1.  ]x  'A'^.)  under  which  Missouri  l)ecame  a  State  and  was 
admitted  into  the  Fnion.  made  the  middle  of  fltc  main  rJuiinicl  of  the 
M ts.s!ssij)i)i  li}r( r  the  eastern  bomidarv.  so  far  as  its  boimdarv  was 
conterminous  with  the  western  boundary  of  Illinois.  The  enabling 
act  (d'  August  (),  184().  (*.>  Stat.  .")(>.  c.  80.)  under  which  "Wisconsin 
ailo|)te(l  a  con>titution  and  became  a  State  and  was  admitted  into  the 
Tnion.  gives  the  western  boundary  of  that  State,  after  reaching  the 
ii\«'r  St.  ("roix.  as  follows:  'Thence  down  the  main  channel  of  said 
river  to  the  Mississippi,  thence  down  the  centre  of  the  main  channel 


§  128. J  RIVER    BOUNDARIES.  619 

of  that  '  (Mississippi)  '  river  to  the  northwest  corner  of  the  State  of 
Illinois."  The  northwest  corner  of  the  State  of  Illinois  must  there- 
fore be  in  the  middle  of  the  main  channel  of  the  river  which  forms  a 
portion  of  its  western  boundary.  It  is  very  evident  that  these  terms, 
'  middle  of  the  Mississippi  Riv^er,'  and  '  middle  of  the  main  channel 
of  the  Mississippi  Iliver,'  and  '  the  centre  of  the  main  channel  of  that 
river,'  as  thus  used,  are  synonymous.  It  is  not  at  all  likely  that  the 
Congress  of  the  United  States  intended  that  those  terms,  as  applied 
to  the  Mississippi  River  separating  Illinois  and  Iowa,  should  have  a 
different  meaning  when  applied  to  the  Mississippi  River  separating 
Illinois  from  Missouri  or  a  different  meaning  when  used  as  descrip- 
tive of  a  portion  of  the  western  boundary  of  Wisconsin.  They  were 
evidently  used  as  signifying  the  same  thing.  .  .  .  [The  court 
hei-e  discussed  Dunlieth  and  Dubuque  Bridge  Co.  r.  County  of 
Dubuque,  55  Iowa,  558,  505,  and  Buttenuth  ^'.  St.  Louis  Bridge  Co., 
1'2?>  Illinois,  585,  548.] 

"  The  opinions  in  both  of  these  cases  are  able  and  present,  in  the 
strongest  terms,  the  ditferent  views  as  to  the  line  of  jurisdiction 
between  neighboring  States,  separated  by  a  navigable  stream;  but  we 
are  of  opinion  that  the  controlling  consideration  in  this  matter  is  that 
which  ])reserves  to  each  State  equality  in  the  right  of  navigation  in 
the  river.  "We  therefore  hold,  in  accordance  with  this  view,  that  the 
true  line  in  navigable  rivers  between  the  States  of  the  Union  which 
sej)arates  the  jurisdiction  of  one  from  the  other  is  the  middle  of  the 
main  channel  of  the  river.  Thus  the  jurisdiction  of  each  State 
extends  to  the  thread  of  the  stream,  that  is,  to  the  *•  midchannel,'  and, 
if  there  be  s(neral  channels,  to  the  middle  of  the  principal  one,  or, 
rathe)',  the  one  usually  followed. 

"  It  is  therefore  ordeivd,  adjudged  and  declared  that  the  boundary 
line  between  the  State  of  Iowa  and  the  State  of  Illinois  is  the  middle 
of  the  main  navigable  channel  of  the  Mississippi  River." 

low.i  V.  Illinois  (ISn.3).  147  IT.  S.  1,  7-14,  citing  Wheaton's  Elements 
(Sth  ed.),  sees.  102  and  202;  Creasy,  First  Platform  of  Int.  Law, 
sec.  281,  p.  222  ;  Ilallock,  Int.  Law,  I.  c.  vi.,  sec.  2.*^ ;  Woolsey,  Int.  Law, 
8  C.2;  Pliillimore,  Int.  Law,  I.  289. 

See  Kooknlv  &  Hamilton  Rridge  Co.  r.  Illinois  (1900).  17.")  IT.  S.  (;2(i,  citing 
not  only  the  above  case,  hut  also  Kt'okuk  &  Hamilton  P>ridge  Co.  r. 
'Pile  I'coph'.  14.")  Illinois,  .",90.  in  which,  said  the  conrt,  "  it  was  held 
that  when  the  middle  of  a  navigable  river  becomes  the  boundary  line 
between  two  States,  the  middle  of  the  current  or  channel  of  commerce 
will  be  regarded  as  the  Ixmndary  line." 

The  report  of  conunissioners  appointed  Feb.  8.  1890,  100  V.  S.  (JSS,  to  find 
and  re-mark  the  line  betwe<>n  Missouri  and  Iowa,  is  eonflrmed  in 
Missouri  r.  Iowa  (1S97),  10.".  V.  S.  IIS. 

"\Vher(>  the  boundary  between  two  States  (e,  g.  Illinois  and  ISIis- 
souri)    is  "the   middle  of  the   main   chainiel  "  of  a   river,  the   line 


()'iO  NATIONAL   jurisdiction:    TERRITORIAL   LIMITS.  [§128. 

ohan<res  with  the  changes  in  the  middle  of  the  river's  main  channel, 
due  to  the  gradual  shifting  of  the  soil. 

KelU'fontaino  Imi).  Co.  r.  Nipdrinjilums  (181)0),  1S1  111.  420.  .If*  N.  E.  184; 
Mcliaine  r.  .lohnsoii.  !.">  Mo.  lOL  .">  S.  W.  10.31:  Bonewits  r.  Wy- 
fiant.  7.")  Ind.  41. 

The  Ixnuulary  lietween  Illinois  and  Iowa  is  the  middle  of  the  main  navi- 
jjahle  channel  of  the  Mississippi,  and  not  the  middle  of  the  river  bed. 
(Kooknk  &  II.  liridj^e  Co.  r.  reoi)le  (111.),  47  X.  E.  .313. ) 

For  the  confirmation  of  the  reiK)rt  of  the  conuiiissioners  appointed  to  re- 
mark the  houndar.v  between  Missouri  and  Iowa,  see  State  of  Missouri 
r.  State  of  Iowa.  Ki.")  V.  S.  118.  17  S.  Ct.  290. 

The  l»oun(lar.v  between  Misscmri  and  Xel)raska  in  the  vicinit.v  of  Island 
Precinct  is  the  center  line  of  the  orijjinal  channel  of  the  Missouri  lliver 
as  it  was  before  the  avulsion  of  18(57  and  not  the  center  line  of  the  chan- 
nel since  that  time,  although  no  water  now  flows  through  the  original 
channel.     (Missouri  r.  Xel)raska  (1004).  19<]  U.  S.  23.) 

As  to  the  api>ortionment  of  accretions  anions;  riparian  proprietors,  see 
Kehr  r.  Snyder,  114  111.  31.3,  .">  Am.  Hep.  80(5. 

Where  .\'s  land  was  bounded  b.v  a  river,  and  B's  land,  which  la.v  entirel.v 
under  water  and  was  acquired  b.v  i)atent  from  the  State,  was  bounded 
by  A"s.  it  was  held  that  accretions  extending  from  the  shore  into  the 
river  belonged  to  A.  while  accretions  forming  in  the  river  and  ex- 
tending toward  the  shore  belonged  to  R.  (Linthicum  r.  Coan.  (U  Md. 
'4,30,  r)3  Am.  Keji.  210;  S.  P..  Posey  r.  .lames.  7  Lea  (Tenn.).  98.) 

Where  tracts  of  land  on  oi»posite  shores  of  a  stream  graduall.v  come  to- 
gether, the  line  of  contact  1)ecomes  the  dividing  line.  (Buse  r.  Rus- 
sell, 80  Mo.  200.) 

AVliere  two  nations  are  j)ossessed  of  territory  on  opposite  sides  of  a 
hay  or  navigable  rivei".  the  sovereignty  of  each  presumptively  ex- 
tends to  the  middle  of  the  water  from  any  part  of  their  respective 
shores.  But.  where  one  nation  first  takes  possession  of  the  whole  of 
the  bay  or  navigal)le  river,  and  exercises  sovereignty  thereon,  the 
neighboring  peoi)le  shall  nevertheh^ss  be  **  loi'ds  of  their  pai'ticular 
|)orts,  and  so  much  of  the  sea  or  navigable  river  as  the  convenient 
access  to  the  shoi'c  i"e(iuires." 

("ritteiiden.  At.  (Jen.   (18."il).  .">  Op.  412.     As  to  the  <H)ncurrent  jurisdiction 

exercised  b.v  Mimiesota  and  Wisconsin  over  the  St.  Croix  River,  see 

()l>sahl  r.  .ludd.  :'.(»  Mimi.  120. 

Grants  of  land  bounded  by  fresh-Avater  rivers,  where  the  exjires 
sions  designating  the  water  line  are  general,  confer  the  ])roi)rietorship 
on  the  grantee  to  the  middle  thread  of  the  stream,  and  entitle  him  to 
accretions.  This  ride  ai)i)lies  to  a  great  i)ublic  water  course,  like  the 
Mississippi  at  St.  Louis.  The  doctrine  that  on  rivers  "where  the 
tide  ebbs  and  flows"  grants  of  land  are  bounded  bv  ordinai-y  high- 
water  mark  ''has  no  application  in  this  case;"  nor  does  the  size  of 
the  river  alter  the  rule. 

.Ton"s  r.  Soulard.  24  Howard,  41.     On  these  grounds  it  was  held  that  the 

city  of  St.   Louis,  being  bmuided   "  liy   the  Mississi])iii."  extended   to 

the  middle  of  that  river. 


§1^9.]  NAVIGATION    OF    RIVERS.  621 

By  the  common  law  the  title  of  owners  of  land  bordering  on  rivers 
above  the  ebb  and  flow  of  the  tide  extended  to  the  middle  of  the 
stream;  below  such  ebb  and  flow  it  extended  only  to  the  ordinary 
high-water  mark,  the  title  to  the  land  below  that  mark  being  in  the 
Crown.  The  foundation  of  this  rule  was  the  fact  that  in  P^ngland 
the  ebb  and  flow  of  the  tide  constituted  the  essential  test  of  naviga- 
l)ility.  In  the  United  States,  owing  to  the  character  of  its  streams, 
the  rule  of  the  ebb  and  flow  of  the  tides  is  inapplicable,  and  the  true 
test  is  found  in  the  fact  of  navigability.  This  is  the  doctrine  in 
many  of  the  States,  though  in  some  of  them  the  rule  of  the  common 
law  has  been  maintained.  In  the  courts  of  the  United  States  the 
rule  of  ebi)  and  flow  of  the  tide  for  determining  navigability  has 
been  discarded  since  the  case  of  llie  Genesee  Chief.  12  Howard,  -143, 
4.-).-).  What  is  described  in  Barney  r.  Keokuk,  94  U.  S.  324.  338,  as 
••  the  confusion  of  navigable  with  tide  water,  found  in  monuments  of 
the  common  law,"  long  prevailed  in  the  United  States,  and  for  two 
generations  excluded  the  admiralty'  jurisdiction  from  the  great  rivers 
and  inland  seas. 

Packer  c.  Bird  (1891).  137  U.  S.  m\. 

An  owner  of  lands  on  a  navigable  stream  holds  only  to  high- 
water  mark  and  not  to  the  middle  of  the  stream. 

Wallace  r.  Driver.  01  Ark.  420,  :«  S.  W.  Wl  ;  Perknis  r.  Adams  (:Mo.)  .'« 
S.  W.  ITS.  Low-water  mark  is  the  ])oiiit  to  which  the  river  recedes 
at  its  lowest  staj^e;  high-water  mark  is  the  line  to  which  the  river 
rises  for  periods  siiHicieiit  to  dei)rive  the  soil  of  vegetation  and 
render  it  valueless  for  agriculture.  (Paine  Lumher  Co.  v.  T'nited 
States,  ')')  Fed.  Rep.  S.">4 ;  Carpenter  v.  Board  of  Comrs.  (Minn.), 
.".r,  Minn.  ,">i:{.  .j8  N.  W.  20.").) 

A  niussel-hed  over  which  the  water  ehhs  and  flows  at  every  tide,  and 
between  which  and  the  shtire  no  water  flows  at  low  tide,  is  not  an 
island,  hut  belongs  to  the  owner  of  the  adjacent  shore.  (King  v. 
Young,  70  .Me.  7<J,  40  Am.  Kep.  50(>.) 

(2)     .\AVIG.\TION. 


It  was  said  in  The  MonteJJo,  20  Wall.  430,  439,  that  public  navi- 
gai)le  rivers  were  those  that  were  "  navigable  in  fact:  "  and  that  they 
were  *'  navigal)le  in  fact  when  they  are  used,  or  are  susceptible  of 
l)eing  used,  in  their  ordinary  condition,  as  highways  for  commerce, 
ovei'  which  trade  and  travel  are  or  may  be  conducted  in  the  custom- 
ary modes  of  travel  on  water.''  And  again  (p.  442)  :  **  It  is  not. 
however,  as  (^hief  Justice  Shaw  said,  21  Pick.  .')44.  '  every  small 
creek  in  which  a  fishing  skifl'  or  gunning  canoe  can  be  made  to  float 
at  high  water  which  is  deemed  navigal)le.  but,  in  order  to  give  it 
the  character  of  a  navigable  stream,  it  must  be  generally  and  com- 


(>2'J  NATIONAL    jurisdiction:    TERRITORIAL    LIMITS.  [§129. 

inoiily  useful  to  some  i)uri)osc  of  trade  or  agriculture,' "  These 
utteraiK-es  in  the  case  of  The  MoutcUo  rehited  to  the  Fox  River,  in 
which  there  was  an  abundant  How  of  water  and  a  general  capacity 
for  navigation  along  its  entire  length,  so  that,  although  it  was  at 
certain  places  obstructed. bv  rapids  and  rocks,  yet  if  those  obstruc- 
tions were  overcome  by  canals  and  locks  the  stream  could  in  its 
ordinary  condition  be  used  for  general  purposes  of  navigation.  The 
l\i()  (irande  within  the  limits  of  New  Mexico  is  not  such  a  stream. 
The  ordinai-y  How  of  water  is  insufficient.  Its  use  for  any  pur- 
poses of  transportation  has  been  and  is  exceptional  and  only  in 
times  of  temporary  high  water.  The  mere  fact  that  logs,  poles, 
and  rafts  are  floated  down  a  stream  occasionally  and  in  times  of 
high  water  does  not  make  it  a  navigable  river. 

t'liited  States  c.  Kio  Grande  Dam  &  Irrigation  Co.  (181)9),  174  U.  S.  690, 
COS-U'J'J. 

A  stream  which  can,  in  its  natural  state,  be  used,  though  not  nec- 
essarily at  all  times,  for  the  i)in-pose.s  of  commerce  in  the  transporta- 
tion of  merchandise  is  a  jniblic  navigable  river. 

Walker  v.  Alien.  72  Ala.  4.">(; :  Olive  v.  State,  SC.  Ala.  SS ;  Morrison  r.  Cole- 
man. S7  Ala.  <>.">:  Tennessee,  ete..  C.  \\.  Co.  r.  Danfortli.  20  So.  Kepor- 
ter.  .".02:  llodjics  r.  Williiims.  !C)  N.  C.  ;i:{l  ;  Little  Uodi,  &e..  K.  K. 
Co.  r.  I'.nioks.  :',!>  Ai-k.  4(i."..  4.'5  Ain.  Uep.  277:  Toledo  L.  S.  Co.  c.  Erie 
Slioiitin;,'  Clnh.  !>()  Fed.  Keji.  dSO;  see  also  Cardwell  r.  Sacramento 
County.  7!>  Cal.  :!47.  21  Tac.  \W\y  ~i^\\\:  Teoitle  r.  Mill  &  Lund)er  Co., 
107  Ciil.  221:  Bucki  r.  Cone.  2."i  Fla.  1.  d  So.  Hep.  1(>0 ;  Axline  r. 
Sliaw.  :!n  Fla.  .•!().■"):  State  r.  Wal)asli  I'aper  Co.  (Ind.).  51  N.  E.  Hep. 
!t4!»:  (Joodwill  v.  Hossier  Police  ,Tury.  .'W  La.  An.  7.")2 ;  Burroughs  i\ 
Wliitwan.  .V.»  Mich.  27t»:  Snnth  /•.  Fonda,  (J4  Miss.  r»."»l  ;  Concord 
.MtV'.  Co.  V.  Robertson.  C.d  N.  II.  1:  lUiflalo  Pipe  Line  Co.  v.  N.  Y., 
Lake  Eric.  &c.,  U.  U.  Co..  lo  A1>1>.  N.  Cas.  1»»7.  n(i-121;  Ten  Eyck  r. 
Town  of  Warwick.  7.">  Ilnn.  .")<;2.  27  X.  Y.  Supj).  ."»;{(;:  He  State  Ueser- 
«'r\ati(in  Comrs..  :!7  linn.  ."'>:'.7  :  State  r.  White  Oak  Kiver  Cori>oration, 
111  .\.  C.  (;c,1.  ic,  S.  E.  Kei>.  -.WW  ;  State  v.  Eason  (X.  C),  It)  S.  E.  Hep. 
SS  :  .Icrcniy  /•.  Elwell.  .">  Ohio  Cir.  Ct.  K.  .■{7!t :  Shaw  r.  (Oswego  Iron  Co., 
lo  Oregon  :t71,  4.")  Am.  Ke|».  14d ;  Haines  r.  Hall.  17  Oregon,  Id."),  20 
Pac.  l{ci>..  s;!l  :  Ilcywanl  v.  .Mining  Co..  42  S.  C.  i:'.S.  1!)  S.  E.  Kep. 
!«;:'.:  Irwin  v.  P.rown  (Tenn. )  12  S.  W.  Kep.  .'UO :  Jones  c.  .Johnson 
(Tex.).  2.'">  S.  W.  r,.")0 :  East  Ho(iuiam  Boom.  &c.,  Co.  r.  Xeeson 
(Wash.  I.  .".4  Pac.  Kep.  Kiol  :  Falls  Mfg.  Co.  r.  Oconto  Kiver  Imi). 
Co.  (Wis.).  .-S  X.  W.  2.".7:  Willow  Kiver  Club  r.  Wade  (Wis.).  70 
X.  W.  27:!:    Hayzer  r.  .McMillan  .Mill  Co.  (Ala.).  K;  So.  Kep.  92:i. 

As  to  jurisdiction  in  the  Inited  States  over  navigable  waters,  see  Henry, 
.Vdm.   'urisdiction.  §   12. 

The  iin(|uestioned  rule  of  the  common  law  was  that  every  riparian 
ownei-  was  entitled  to  the  continued  natural  How  of  the  stream,  but 
Avliile  tills  i-iile  obtained  in  those  States  of  the  Union  that  have 
simply   adopted   the  common   law.  each   State  mav.   within   its  do- 


§  130.]  NAVIGATION    OP    NATIONAL    STREAMS.  623 

minions,  change  the  rule  and  permit  the  appropriation  of  the  flo\Y- 
ing  waters  for  such  purposes  as  it  deems  wise.  Tliis  power  is,  how- 
ever, subject  to  two  limitations:  (1)  That  without  specific  authority 
of  Congress  a  State  can  not  destroy  the  right  of  the  United  States 
as  the  owner  of  lands  on  a  stream  to  the  continued  flow  of  the  water, 
so  far,  at  least,  as  may  be  essential  to  the  beneficial  uses  of  the  (iov- 
ernnient  property,  and  (2)  that  the  General  Government  possesses 
a  paramount  power  to  secure  the  uninterrupted  navigability  of  all 
navigable  streams  within  the  limits  of  the  United  States.  By  acts 
of  July  26,  1806,  §  9,  U  Stat.  253  (Rev.  Stat.  §  2339),  March  3,'  18T7, 
19  Stat.  377,  and  March  3,  1891,  26  Stat.  1101,  Congress  recognized 
and  assented  to  the  appropriation  of  water  in  contravention  of  the 
conunon-law  rule  as  to  continuous  flow,  but  did  not  release  its  con- 
trol over  the  navigable  streams  of  the  country.  By  section  10  of 
the  act  of  September  19,  1890.  26  Stat.  454,  it  is  declared  that  "  the 
creation  of  any  obstruction,  not  affirmatively  authorized  by  law,  to 
the  navigable  capacity  of  any  waters  in  respect  of  which  the  United 
States  has  jurisdiction,  is  hereby  prohibited.''  The  obvious  meaning 
of  this  act  was  that  no  State  should  thereafter  interfere  with  the 
navigability  of  a  stream  without  the  national  assent,  and  by  section  3 
of  the  act  of  July  13,  1892,  27  Stat.  88,  amending  section  7  of  the 
act  of  September  19,  1890.  the  erection  of  any  structure  in  any  navi- 
gable waters  of  the  United  States,  without  permission  of  the  Secre- 
tary of  War.  in  such  manner  as  to  obstruct  or  impair  navigation, 
counnerce.  or  anchorage  therein  is  declared  to  be  unhiAvful. 

United  States  r.  Kio  Grande  Dam  &  Irrigation  Co.   (1899),  174  U.  S.  iidO. 

Courts  take  judicial  notice  that  certain  rivers  are  navigable  and 
others  not  so,  since  these  are  matters  of  general  knowledge,  but  it 
does  not  follow  that  the  particular  place  between  itsinouth  and  its 
source  where  a  river  ceases  to  be  navigable  is  a  matter  of  common 
knowledge,  and  this  being  so,  the  question  is  one  to  be  determined 
by  evidence. 

United  States  r.  Kio  (Jrande  Dam  &  Irrigation  Co.  (1S99),  174  V.  S.  <>!X>. 

(;})     NATIONAL    STREAMS. 

§  130. 

The  question  of  the  navigation  of  the  Mississippi  was  the  subject 
of  consideration  in  the  Continental  Congress  and  of 
ississipp  .     ,j(>or()(i.jtiQ,j  j^t  Madrid  during  the  American  Revolu- 
tion. Spain  demanding  the  recognition  of  her  claim  to  the  exclusive 
navigation  of  the  river  as  a  necessary  condition  of  aid  to  the  United 
States  in  their  struggle  with  Great  Britain." 

a  See  Wharton,  Dip.  Cor.  Am.  Kev.  VI.  051. 


(i24  NATIONAL    JURISDICTION:    TERRITORIAL    LIMITS.  [§130. 

The  treaty  of  peace  between  the  United  States  and  (Jreat  liritain 
of  iTS2-S8  deehired  (Art.  VIII.):  "The  navigation  of  the  river 
Mississi})pi.  from  its  source  to  the  ocean,  shall  forever  remain  free 
and  oj)en  to  the  subjects  of  Great  Britain  and  the  citizens  of  the 
United  States." 

In  171)0  the  diplomatic  representative  of  the  United  States  at 
Madrid  was  instructed  to  urge  upon  the  Spanish  Government  the 
innnediate  opening  of  the  river." 

In  a  report  to  the  President  of  March  18,  1702,  Mr.  Jefferson,  as 
Secretary  of  State,  asserted  the  right  of  the  United  States  to  the  free 
navigation  of  the  Mississippi  within  the  Spanish  dominions  on  the 
groinid  (1)  of  the  treaty  of  Paris  of  17()3,  {'2)  of  the  treaty  of  peace 
with  (ireat  Britain  of  178:2-83,  and  (3)  of  '"the  law  of  nature  and 
nations,"  a  ground  declared  to  be  "still  broader  and  more  un(iues- 
tionable  ''  than  either  of  the  others.  "  The  ocean,"  said  Mr.  Jeffer- 
son, '•  is  free  to  all  men,  and  their  rivers  to  all  their  inhabitants.  .  .  . 
Accordingly,  in  all  tracts  of  country  united  under  the  same  political 
society,  we  find  this  natural  right  universally  acknowledged  and  pro- 
tected by  laying  the  navigable  rivers  open  to  all  their  inhai)itants. 
When  their  rivers  enter  the  limits  of  another  society,  if  the  right  of 
the  upper  inhai)itants  to  descend  the  stream  is  in  any  case  obstructed, 
it  is  an  act  of  force  by  a  stronger  society  against  a  weaker,  condenmed 
by  the  judgment  of  mankind.  .  .  .  The  Roman  law,  which,  like 
other  nnniicipal  laws,  placed  the  navigation  of  their  rivers  {>n  the 
footing  of  nature,  as  to  their  own  citizens,  by  declaring  them  })ublic 
(fliuuina  publica  sunt,  hoc  est  })opuli  Komani,  Inst.  2,  t.  1,  >?  i2), 
declared  also  that  the  right  to  the  use  of  the  shores  was  incident  to 
that  of  the  water.     Ibid.  JJ  5j  1.  3.  4.  5." 

Am.  Stiite  rnpers.  For.  Kcl.  I.  :.>.">:!.  '27>4:  .Jofforson's  Works.  VII.  ,')TT.  r»80. 

By  the  treaty  of  October  27.  179;"),  the  King  of  Spain  agreed  (Art. 
IV.)  that  the  navigation  of  the  Mississippi  should  "be  free  (>nly  to 
his  subjects  and  the  citizens  of  the  United  States,  unless  he  should 
extend  this  privilege  to  the  subjects  of  other  powers  by  special  con- 
vention," and  conceded  (Art.  XXII.)  a  right  of  deposit  for  mer- 
chandise at  New  Orleans. 

Moore.  Int.  Arl.itratioiis.  II.  OltS;  Adams.  Hist,  of  the  I'.  S.  I.  :U8-:i49. 

"  The  United  States  have  a  just  claim  to  the  use  of  the  rivers  which 
pass  from  their  territories  through  the  Floridas.     They  found  their 

"Mr.  .Icffcrson.  Sec.  of  State,  to  Mr.  ("armicliacl.  Aus-  2.  ITiKj,  Am.  State 
fapcrs.  For.  Kel.  I.  247. 

Soo.  also.  Mr.  .lofTcrson.  Sec.  of  State,  to  Messrs.  de  Viar  and  .laudenes,  Jan. 
•jr.  and  Jan.  L'f,.  17!»2.  4  MS.  Am.  Let.  .".4n.  :'.r.o. 

Sec,  as  to  ncfjotiations  of  I78.3-178N.  Trescot,  Du).  History,  43-50, 


§  130.]  NAVIGATION    OF    NATIONAL    STREAMS,  625 

claim  on  like  principles  with  those  which  supported  their  claim  to  the 
use  of  the  Mississippi.  If  the  length  of  these  rivers  be  not  in  the 
same  proportion  with  that  of  the  Mississippi,  the  difference  is  bal- 
anced by  the  circumstance  that  both  banks,  in  the  former  case,  belong 
to  the  United  States." 

Mr.  Madison,  Sec.  of  State,  to  Messrs.  Liviugston  and  Monroe,  ministers 
to  France.  Mnrt-h  2,  iS(X^.  Annals  ol'  Congress,  7  Cong.  2  .sess. 
(1802-3)   1095,  1009.     See,  also,  id.  1102-1104. 

By  the  subsequent  acquisition  of  Louisiana  and  the  Floridas  the 
United  States  established  its  uncontested  dominion  over  the  lower 
banks  of  the  Mississippi  as  well  as  over  the  banks  of  the  rivers 
referred  to  in  the  foregoing  passage.  The  Mississippi  thus  ceased 
to  be  an  international  stream,  and  the  right  to  control  its  navigation 
[)assed  exclusively  to  the  United  States,  unless  indeed  Great  Britain 
could  claim  the  right  to  navigate  it  under  Article  VIII.  of  the 
treaty  of  1782-83.  That  right  was.  however,  as  it  appears,  conceded 
under  a  misapprehension  and  was  afterwards  abandoned.  Article 
VIII.  of  the  treaty  of  1 78*2-83  is  to  l)e  read  in  connection  with  Article 
II.  of  the  same  treaty,  relating  to  the  boundary  l)etween  the  two 
countries.  This  boundary  was  to  run.  in  one  of  its  sections,  from  the 
most  northwestern  point  of  the  Lake  of  the  Woods  '^  on  a  due  west 
course  to  the  river  Mississippi,"  and  thence  b}'^  a  line  "  to  be  drawn 
along  the  middle  of  the  said  river  Mississippi,"  until  it  should  inter- 
sect the  thirty-first  degree  of  north  latitude.  It  was  not  long  after- 
wards ascertained  that  a  line  drawn  due  west  from  the  most  north- 
western point  of  the  Lake  of  the  AVoods  would  not  strike  the  Missis- 
sippi; and  it  Avas  for  this  reason  that  i)rovision  was  made  for  a  joint 
survey  of  the  country  in  that  (piarter  by  Article  IV.  of  the  Jay 
treaty,  which  recited  that  it  was  '*  uncertain  Avhether  the  Mississippi 
(  xtends  so  far  to  the  northward  as  to  be  intersected  by  a  line  tr  be 
draMii  due  west  from  the  Lake  of  the  AVoods,  in  the  manner  men- 
tioned in  the  treaty  of  peace."' 

During  the  negotiations  at  Cihent  the  British  commissioners 
endeavored  to  secure  for  their  countrymen  the  retention  of  the  right 
to  navigate  the  Mississippi  by  making  it  the  i)rice  of  yielding  to  the 
United  States  the  continuance  of  the  j)rivileges  previously  enjoyed 
by  American  fishermen  under  Article  III.  of  the  treaty  of  peace. 
The  American  connnissioners  were  very  desirous  of  preserving  the 
fisheries,  but  were  unwilling  to  give  the  equivalent  demanded:  and 
consequent!}'  the  treaty  of  (ihent  contained  no  mention  either  of  the 
fisheries  or  of  the  navigation  of  the  ^lississippi,  both  subjects  being 
postponed  for  future  negotiations. 

Moore,  International  Arbitrations,  I.  Te.")-707. 
11.  Doc.  5r)l 10 


026  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  130. 

The  particular  (|iiosti()n  as  to  the  continuance  of  the  privileges  in 
the  fisheries  was  delinitively  settled  in  1818  by  a  compromise.  Dur- 
iuir  the  negotiations  the  British  commissioners  endeavored  to  revive 
the  (piestion  of  the  navigation  of  the  Mississippi,  but  the  American 
cominissioners  refused  to  entertain  it  for  the  reason  that  it  was  then 
known  that  the  stream  was  not  at  any  point  navigable  Avithin  Brit- 
ish jurisdiction.  Indeed,  the  British  connnissioners  at  (Jhent,  when 
they  asked  for  the  free  navigation  of  the  river,  coupled  with  their 
demand  a  stii)ulation  for  territorial  access  to  the  stream.  The  cir- 
cumstances of  the  settlement  of  1818  are  briefly  but  clearly  stated  by 
Mr.  Rush,  one  of  the  American  negotiators,  in  the  following  passage: 

"An  attempt  was  made  by  the  British  plenipotentiaries  to  con- 
nect with  this  article,  a  clause  securing  to  (Ireat  Britain  access  to  the 
Mississipj)i.  and  the  right  to  its  navigation.  They  made  a  similar 
claim  at  Cihent.  but  withdrew  it;  and  we  declared  that  we  could  con- 
sent to  no  clause  of  that  nature.  Its  omission  having,  in  the  end,  been 
agreed  to,  that  subject  was  also  put  at  rest.  Britain,  under  the  treaty 
of  1T8H,  had  the  right  of  navigating  the  Mississippi:  but  it  was  then 
the  western  boundary  of  the  United  States.  Their  northern  bound- 
ary, by  the  same  treaty,  was  to  have  l)een  a  line  running  due  west 
from  the  most  northwestern  point  of  the  Lake  of  the  ^A'oods  to 
the  M iss't.sxippt.  It  was  afterwards  ascertained  that  a  line  so  drawn, 
would  not  strike  the  ^Mississippi ;  its  head  waters  not  being  within 
British  limits,  as  at  first  supposed.  Hence,  all  reason  for  Britain  to 
claiui  the  right  of  navigating  a  river  which  touched  no  part  of  her 
dominions,  ceased.  The  United  States  have  claimed,  in  a  subse(juent 
negotiation,  the  right  of  navigating  the  St.  Lawrence,  from  its 
sources  to  its  mouth.  The  essential  difi'erence  in  the  two  cases,  is, 
that  flie  upper  irdtcrx  of  the  Ht.  LdArrenee  flow  through  territory 
belonging  to  l)oth  countries,  and  form  a  natural  outlet  to  the  ocean 
for  the  inhabitants  of  several  States  of  the  American  Union. 

.M('iii(tr;m(l;i  of  a  Kt'sidfiicc  at  tlu'  Court  of  Loiuloii.  pp.  4(t4— K)."t. 

In  isTC)  the  government  of  Canada,  in  a  correspondence  relating 
to  the  reci|)rocal  ('(piality.  established  by  Article 
The  Hudson.  XXVII.  of  the  Treaty  (if  AVashington  o'f  May  8, 
isTl,  in  the  use  of  certain  canals,  complained  that  Canadian  vessels 
could  not  enjoy  the  full  luMH'fit  of  navigating  the  Champlain  Canal  to 
its  terminus,  at  Albany,  since  they  were  not  allowed,  although  the 
l)ulk  of  their  cargoes  was  for  New  "^'orlc,  to  j)roceed  down  the  Hud- 
son Kiver.  The  United  States  replied  that  the  treaty  did  not  grant 
to  Canadian  vessels  the  use  of  that  river.  In  189-2,  when  the  (juestion 
was  again  suggested,  the  United  States  said:  "The  Hudson  River  is 
a  natural  waterway,  rising  and  lying  wlioily  within  the  territory  of 
the  United  States,  and  in  no  sen.se  an  international  water  cour.se  to 


§  131.]  NAVIGATION    OF    INTERNATIONAL    STREAMS.  627 

which  the  riparian  rules  of  international  law  are  ai)plieable.  In  the 
conferences  which  preceded  the  signature  of  the  treaty  of  AVashing- 
ton,  this  question  of  the  international  right  to  navigate  natural 
water  courses  belonging  to  adjacent  states  was  fully  considered, 
resulting  in  the  stipulation  of  Article  '2('y  for  the  equal  use  of  the  St. 
Lawrence,  and  the  Yukon,  Porcupine,  and  Stikine  rivers,  an  engage- 
ment Avhich  fitly  stands  alone  as  the  formal  expression  of  a  natural 
right,  independently  of  the  conventional  rights  created^  by  other 
articles  of  tliat  treaty.  The  use  of  the  Hudson  River  does  not  appear 
to  have  been  considered  in  this  relation."' 

Mr.  Foster,  Sec.  of  State,  to  Sir  J.  Pauncefote,  British  iiiin.,  Dec.  31, 
1892,  For.  Kel.  1802.  3.35,  337. 

A  decree  of  the  Ecuadorian  (Government  requiring  all  vessels  engaged  in 
navigating  the  rivers  of  that  country  after  Jan.  31,  1870.  to  he  owned 
exc-liisively  hy  Ecuadorians,  was  not  considered,  apart  from  any 
particular  contract  or  treaty  stipulation,  "  as  exceeding  the  authority 
which  every  government  possesses  for  the  regulation  of  its  internal 
commerce."  (Mr.  J.  C.  B.  Davis,  Assist.  Sec.  of  State,  to  Mr.  Weile, 
consul  at  Guayaquil,  Feb.  2(3,  1870.  57  MS.  Inst.  Consuls,  205,  acknowl- 
edging dispatch  No.  24,  .Tan.  24.  1870. ) 

(4)   INTKRNATIONAL    STREAMS. 

§  131. 

Where  a  river  forms  the  boundary  between  tAvo  countries,  and  the 
only  access  to  the  adjacent  territories  is  through  such  river,  the  waters 
of  the  Avhole  river  must  be  considered  as  connnon  to  both  nations,  for 
all  purposes  of  navigation,  ai-;  a  connnon  highway.  Hence  the  mere 
transit  of  a  P^rench  vessel  through  the  waters  of  a  river  which  forms 
the  boundar}'  between  the  United  States  and  the  territory  of  a  foreign 
state,  for  the  purpose  of  proceeding  to  such  territory,  can  not  be  taken 
to  subject  the  vessel  to  penalties  imposed  by  the  United  States  upon 
French  vessels  for  entering  their  territory. 

The  Apollon.  9  Wheaton.  .3(52. 

See  Mr.  Adams,  Sec.  of  State,  to  Mr.  Habersham,  U.  S.  dist.  attorney  at 
Savainiah,  Nov.  21.  1821,  19  MS.  Doni.  Let.  211. 

"I  may  be  permitted  to  raise  the  (juery  whether  the  fact  that  a  tug  in 
some  part  of  its  course  into  an  .\merican  port  passes  on  the  other 
side  of  the  dividing  line  of  the  Straits  fof  Fuca  |  is  such  a  towing 
in  whole  or  in  i)art  within  or  ujjon  foreign  waters  as  is  contemplated 
by  the  excei)tion  in  S  4370  of  the  Revised  Statutes.  The  case  of  the 
Apollon,  9  Wheaton.  .'UJ2,  suggests  at  least  that  it  might,  not  be." 
(Mr.  Wharton.  .Vet.  Sec.  of  Stiite.  to  Sec.  of  Treasury.  May  22,  1891, 
182   MS.   Dom.   Let.   79.) 

"By  natural  law."  say  the  Institutes  of  .Tustinian.  "the  following  things 
are  connnon  to  all :  The  air.  flowing  water,  and  the  sea.  .  .  .  All 
rivers  and  ports  are  public."  ("  Et  (piidem  naturali  Jure  connnunia 
sunt  omnium  haec :  aer,  acjua  ]>rof1uens  et  mare.  .  .  .  Flumina 
auteiu  omnia  et  portus  ])ublica  sunt."  Institutes.  Lib.  II.,  tit.  I., 
sees.  1-2.) 


628  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  131. 

Tho  "  iiavijratioii  of  the  Rhine,  from  the  point  where  it  becomes 

navigable  nnto  the  sea,  and  vice  versa,"  was,  by  the 

European  rivers,    j,^^.^^.^^  ^^^  p.^^..^  ^^  .^j^.^^.  .^^^  ^^^^   dechired  to  be  ""free, 

so  that  it  can  be  interdicted  to  no  one;  "  and  it  was  provided  that  at 
I  he  c()n<rivss  to  l)e  hehl  at  Vienna  "  attention  "  shouhl  "  be  paid  to  the 
establishment  of  the  i)i"incipU's  acc()rdin<r  to  which  the  (hities  to  be 
raised  by  the  states  b<)rderin<r  on  the  Rhine  may  be  re<ruhited.  in  the 
mode  most  impartial  and  the  most  favorable  to  the  connnerce  of  all 
nations."  And  it  was  further  stij)ulated  that  "the  future  congress, 
with  a  view  to  facilitate  connnunication  between  nations,  and  continu- 
ally to  render  them  less  stran<2:ers  to  each  other,"  should  "  likewise 
examine  and  determine  in  what  manner  the  above  provisions  can  be 
extended  to  other  rivers  which  in  their  navigable  course  separate  or 
traverse  different  states." 

By  the  treaty  of  Vienna  of  June  9,  1815.  the  powers  whose  states 
were  "separated  or  traversed  by  the  same  navigable  river"  engaged 
"  to  regulate.  l)v  connnon  consent,  all  that  regards  its  navigation.'' 
and  for  this  i)uri)ose  to  name  conmiissioners -who  should  atlojjt  as  the 
bases  of  their  proceedings  certain  principles,  the  chief  of  which  was 
that  the  na\igation  of  such  rivers,  "along  their  Avhole  course.  .  .  . 
from  the  point  wheiv  each  ()f  them  l)ecomes  navigable  to  its  mouth 
shall  be  entirely  free,  and  shall  not.  in  respect  to  connnerce.  be  pro- 
hibited to  any  one,"  subject  to  regulations  of  police.  In  order  to 
assure  the  a])plication  of  this  i)rinci])le,  articles  were  inserted  ex- 
j)ressly  regulating  in  certain  respects  the  free  navigation  of  the 
Rhine:  and  it  was  provided  that  "the  siime  freedom  of  navigation" 
should  "  l)e  extended  to  the  Necker.  the  Mayne.  the  Moselle,  the 
Meuse.  and  the  Scheldt,  from  the  point  where  each  of  them  l)ecomes 
navigable  to  their  mouths."  And  in  order  to  "establish  a  j)erfect 
control  "  ovei-  the  regulation  of  the  navigation,  and  to  "constitute  an 
authority  which  may  serve  as  a  means  of  connnunication  between  the 
states  of  the  Rhine  upon  all  subjects  relating  to  navigation,''  it  was 
stii)ulated  that  a  central  commission  should  be  appointed,  consisting 
of  delegates  named  by  the  various  bordering  states,  which  connnission 
should  i-egularly  assemble  at  Mayence  on  the  1st  of  November  in  each 
year.  Regulations  foi-  the  navigation  of  the  Moselle  and  the  Meuse 
were  to  be  drawn  uj)  l)v  those  members  of  the  central  commission 
whose  governments  should  have  possessions  (m  the  banks  of  those 
I'ivers." 

By  the  treaty  between  Austria  and  Russia  of  May  8,  181."),  the  navi- 

"  .ViiK'i  i£  the  stipulations  cnilKHlicd  in  tlu'  treaty  there  was  one  to  the  effect 
th.it  in  tiic  event  of  war  i>i-»>Mliintr  out  anions  ;iny  of  the  states  of  the  Rhine 
till'  (•  llicti.in  (f  custoiiis  s!i  uld  "  <■  ntinue  iniinterrui)te(l.  without  any  obstaeh' 
iM-inir  tiirown  in  tlie  w;iy  ity  «'itiier  imrty."  aid  that  "vessels  and  persons 
tMiipldved  liy  the  custom-houses"  should  "enjoy  all  the  rights  of  neutrality." 


§  131.]  NAVIGATION    OF    F.UROPEAN    RIVERS.  629 

gation  of  the  rivers  and  canals  of  the  ancient  kingdom  of  Poland  was 
declared  to  be  free  "  so  as  not  to  be  interdicted  to  any  inhabitant  of 
the  Polish  provinces,  subject  to  either  the  Russian  or  Austrian  Gov- 
ernment." It  was  agreed,  however,  that  a  tonnage  duty  should  be 
levied  for  the  purpose  of  maintaining  the  rivers  and  canals  in 
question  in  a  navigable  state,  and  that  commissioners  should  be 
appointed  for  the  purpose  of  regulating  this  and  other  matters  of 
navigation.  Similar  provisions  were  embodied  in  a  treaty  concluded 
on  the  same  day  between  Prussia  and  Russia  touching  ancient  Poland. 

By  the  treaty  between  Prussia  and  Saxony  of  May  18,  1815,  pro- 
vision was  made  (Art.  XVII.)  for  the  creation  of  a  commission  to 
regulate  the  navigation  of  the  Elbe,  in  accordance  with  the  general 
principles  adopted  at  the  Congress  of  Vienna.  By  the  treaty  of  June 
•23,  1821,  between  Austria,  Denmark,  Great  Britain,  Prussia,  Saxony, 
Hanover,  Mecklenburg-Schwerin,  Anhalt-Bernburg,  Coethen  and 
Dessau,  and  Hamburg.  "  the  navigation  of  the  Elbe,  from  the  point 
at  which  that  river  becomes  navigable  down  to  the  open  sea,  and  vice 
versa  (as  well  in  ascending  as  in  descending)."  was  declared  to  be 
"  entirely  free  with  respect  to  commerce."  To  secure  this  end  various 
stipulations  were  made,  including  a  provision  for  the  appointment  of 
a  commission  of  revision,  whose  members  should  b^^  appointed  by  the 
bordering  states,  and  whose  object*  and  powers  should  be  ''  to  watch 
over  the  due  observance  of  the  present  convention;  to  form  itself  into 
a  committee  for  the  settlement  of  any  diti'erences  which  may  arise 
between  the  states  bordering  on  the  river,  and  to  determine  upon 
the  measures  which  by  exjjerience  may  be  found  to  be  necessary  to 
the  improvement  of  commerce  and  navigation." 

A  treaty  between  Austria,  Modena,  and  Parma,  of  July  3,  1849,  to 
which  the  Pojjc  acceded  Eebruary  12,  1850,  declared  the  navigation 
of  the  Po  to  be  free  and  open  to  all  persons,  and  committed  its  regu- 
lati(m  to  a  commission." 

By  a  treaty  signed  at  Bucharest,  December  3-15,  ISCfi,  between 
Austria.  Russia,  and  the  United  Principalities  of  Moldavia  and 
Wallachia,  the  navigation  of  the  Pruth  was  declared  to  be  free  and 
open  to  all  flags;  and  provision  was  made  for  a  permanent  mixed 
commission  for  the  purpose  of  regulating  such  navigation. 

The  river  Douro,  by  a  treaty  between  Portugal  and  Spain  of 
August  31,  1835,  was  declared  to  be  free  for  the  navigation  of  "the 
subjects  of  both  Crowns."  It  was  provided  that  navigation  dues  and 
tlie  police  of  the  river  should  be  regulated  by  a  mixed  commission. 

Bv  Article  \.  of  the  treatv  of  Teschen,  Mav  13.  1779,  the  rivers 


a  The  tiviity  of  Vienna.  .luuc  0.  ISl."*.  Art.  XCVI..  jtrovided  that  tho  general 
princiiiles  adojttcd  by  the  Congress  in  regard  to  tlie  navigation  of  rivers  shoiiUl 
;  Pl»ly  to  the  I'o.  and  tliat  commissioners  slunild  l»e  apjiointed  oy  the  states 
bordering  on  it  to  regulate  all  that  eomerned  its  navigation. 


<)8()  NATIONAL    JURISDICTION:    TERRITORIAL   LIMITS.  [§  I'^l- 

Daiiubt',  Inn.  anil  Salza  Aveie  declared  to  l)o  common  to  the  House  of 
Austria  and  the  Elector  Palatine  for  the  navig:ation  of  their  sub- 
jects. These  stipulations  were  confirmed  as  to  the  Salza  and  Saale 
In-  the  treaty  U'tween  Austria  and  Bavaria  of  April  14,  181(). 

By  Article  XV.  of  the  Peace  of  Paris  of  March  30,  1856.  it  Avas 
provided  that  the  principles  established  by  the  Congress  of  Vienna 
for  the  regulation  of  the  navigation  of  rivers  which  separate  or 
traverse  diflVrent  states  should  in  future  apply  to  the  Danube  and 
its  mouths,  whose  navigation  was  declared  to  be  free,  subject  to 
l)olice  and  (|uarantine  regulations.  With  a  view  to  carry  out  this 
arrangement  it  was  stij)ulated  (Art.  XVI.)  that  a  European  commis- 
sion. c<>mi)()sed  of  one  delegate  each  from  Austria.  France,  (ireat 
Britain.  Prussia.  Kussia.  Sardinia,  and  Turkey,  should  be  charged 
with  the  execution  of  works  for  clearing  the  mouths  of  the  river 
and  the  adjacent  seas  from  ol)structions.  By  Article  XVII.  of  the 
treaty,  provision  was  made  for  the  establishment  of  a  permanent 
body,  called  the  Danube  River  Commission,  to  be  composed  of  dele- 
gates of  Austria.  Bavaria.  Turkey.  Wurtemberg,  and  the  three  Dan- 
ulfian  principalities,  for  the  j)urpose  (1)  of  preparing  regulations  of 
navigation  and  river  police.  {'2)  of  removing  impediments  to  the 
aj)j)lication  of  the  arrangements  of  the  treaty  of  Vienna,  (8)  of 
causing  necessary  works  to  be  executed  along  the  whole  course  of 
the  river,  and  (4)  of  keeping  the  mouths  and  adjacent  seas  in  a 
navigabU^  state  after  the  dissolution  of  the  Eurojiean  connnission. 

By  the  treaty  of  London  of  March  18.  1871.  the  existence  of  the 
EurojM'an  commission  was  extended  to  April  i?4.  1888.  It  was  further 
provided  that  "the  conilitions  of  the  reasseml)ling  of  (h.'  riverain 
(•(unnii-sion."  establislied  by  Article  XVII.  of  the  treaty  of  Paris, 
should  ••  be  fixed  by  a  previous  understanding  between  the  riverain 
powt'rs.  without  i)i"eju(lice  to  the  claust^  relative  to  the  three  Danubian 
l)rincipabti<'s.'"  and  that,  so  far  as  any  modification  of  the  article 
should  be  invohcd.  it  sliouhl  "  form  the  subject  of  a  special  conven- 
tion l)etween  the  cosignatorv  powers." 

By  the  ti-eaty  of  Berlin  of  Jidy  18.  1878.  in  order  to  increase  the 
guaranties  of  the  free  na\  igation  of  the  Danube,  it  was  provided  (Art. 
LI  I.)  that  "  all  the  fortresses  and  fortifications  existing  on  the  course 
of  the  river  from  the  Iron  Cates  to  its  mouth  "  should  "  b;*  razed 
and  no  n»'w  ones  erectt-d."  It  was  also  j)rovided  (Art.  LIII.)  that 
the  European  couniii-.-ion.  on  which  IJoumania  was  to  have  a  repre- 
-(iiiative.  should  be  "  maintained  in  its  functions."  and  that  it  should 
tliiiiccfdrlh  exercise  them  "  as  far  as  (Jalatz  in  complete  independence 
of  tlic  tci'iitoi'ial  authorities."  And  it  was  further  provided  (Art. 
\A\  .)  tliat  i)ri(ir  to  the  ex|)iration  of  the  term  assigned  for  the  dura- 
ti"n  of  the  European  c(»nimission.  the  powers  should  "come  to  an 
undt  i-tanding  a>  to  the  prolongation  of  its  powers,  or  the  modifies- 


§  131.]  NAVIGATION    OF    AMERICAN    RIVERS.  631 

tions  which  they  may  consider  necessary  to  introduce,"  and  (Art. 
LV.)  that  the  refjuhitions  respecting  the  navigation,  river  police,  and 
supervision  from  the  Iron  Gates  to  Galatz  should  be  drawn  uj)  by  the 
European  conunission,  assisted  by  delegates  of  the  riverain  states,  and 
placed  in  harmony  with  those  issued  for  the  river  below  Galatz. 

In  order  to  come  to  an  understanding  in  regard  to  these  last  stipu- 
lations, a  new  treaty  was  concluded  ^larch  10,  1883,  between  Austria- 
Hungary,  France,  (lermany,  (Jreat  Britain,  Italy,  Russia,  and  Turkey. 
By  this  treaty  the  jurisdiction  of  the  European  commission  was 
extended  from  (nilatz  to  Ibraila,  and  its  powers  were  prolonged  till 
Ai)ril  "24,  1901,  and  thereafter  for  successive  terms  of  three  years  till  a 
certain  notice  was  given. 

But,  besides  prolonging  the  existence  of  the  European  commission, 
the  treaty  also  created  a  new  counnission,  called  the  "  Mixed  Commis- 
sion of  the  Danube,"  to  consist  of  delegates  of  Austria-Hungary,  Bul- 
garia, Roumania,  and  Servia,  and  a  member  of  the  European  counnis- 
sion, for  the  pur])ose  of  superintending  the  execution  of  the  regulations 
made  for  the  navigation  of  the  river.  This  commission  is  to  endure 
as  long  as  the  Eruo})ean  counnission,  to  hold  two  sessions  a  year,  and 
to  make  its  decisions  "  by  a  majority  of  votes." 

For  the  text  of  the  treaties  ahove  cited,  see  Ilertslet,  Map  of  Europe  hj 
Treaty. 

The  ruh^s  of  the  Congress  of  Vienna  were  fornmhited  iiiuler  the  influence 
(if  Karon  Iluniholdt.  who  was  a  nieniher  of  the  connnittee  on  the 
navigation  of  rivers. 

For  a  discussion  of  the  rules  of  the  Congress,  see  Fiore,  Droit  Int.  (ed. 
ISS,"..  I).v  Antoine),  II.  §  TCI  :   Hall,  Int.  Law,  (4th  ed.),  142  et  seii. 

See,  generally,  as  to  the  navigation  of  rivers,  Engelhardt's  Ilistoire  du 
Droit  Fluvial  Conventionnel  (lS8i>),  and  the  same  author's  Regime 
Conventionnel  des  Fleuves  (1879);  Caratheodory,  Droit  Int.  con- 
cernant  les  gratuls  Coin's  d'Eau  (1801),  and  the  same  author's  Das 
Stronigehietsrecht  und  die  internationale  Flusschiffahrt  (1887)  ; 
Woolsey.  Int.  Law,  S  <;2  ;  Hall,  Int.  Law  (4th  ed.),  l.'iC. 

As  to  the  navigation  of  the  Danuhe,  see  Mr.  Uhl,  Act.  Sec.  of  State,  to  Mr. 
Croc-lver.  Nov.  20,  1804,  lOi)  MS.  Doni.  Let.  4.~>7.  citing  Encyclopaedia 
Britannica,  VI.  810;  Treaties  and  other  docinnents  relating  to  the 
navigation  of  the  Danuhe  (I'arl.  Pap.,  18.'i<!)  ;  Commercial  No.  G 
(1804)  ;  Further  reiK)rt  on  the  improvements  made  in  the  navigation 
of  the  I>anul)e.  1878-180:i  (I'arl.  Pap.). 

In  18*23  a  petition  was  presented  to  Congress  by  the  inhabitants  of 
American    rivers:    Franklin  County,  New  York,  asking  that  the  right  be 

St.  Lawrence.  secured  to  them  of  exporting  their  produce,  chiefly 
linnber,  through  the  St.  Lawrence  River  to  the  Atlantic  Ocean." 

Congress  having  reported  favorably  on  the  petition,  Mr.  John 
Quincy  Adams,  then  Secretary  of  State,  June  23,  1823,  instructed  Mr. 
Rush.  Fnited  States  minister  at  London,  to  bring  the  subject  to  the 

"Schuyler.  American  Diplomacy,  282. 


<)82  NATIONAL,   JURTSDTCTTON  :    TERRITORIAL   LIMITS.  [§  131. 

attiMition  of  tlio  British  Government.  It  appeared  that  the  inhab- 
itants of  the  United  States  had  previously  enjoyed,  especially  under 
the  conditions  of  trade  established  by  the  Jay  treaty,  a  certain  use  of 
the  river  for  connnercial  purposes,  but  the  continuance  of  this  use 
was  considered  by  the  British  Ciovernment,  especially  after  the  war  of 
181"2.  as  a  concession  which  niifjht  at  any  time  be  withdrawn;  and  it 
had  in  fact  been  restricted  by  certain  imperial  legislation.  Mr. 
Adams  stated  that  the  right  of  the  inhabitants  of  the  United  States 
to  navigate  the  St.  Lawrence  to  and  from  the  ocean  had  never  been 
discussed  with  the  British  Government,  but  that  he  had  little  doubt 
that  it  might  be  established  upon  the  ""general  principles  of  the 
law  of  nature."  The  United  States,  declared  Mr.  Adams,  was  bound 
to  maintain  for  th(>  jieoj)le  of  the  Territory  of  Michigan  and  of  the 
States  of  Illinois.  Indiana.  Ohio,  Pennsylvania,  New  York,  and  Ver- 
mont "  the  natural  right  of  communicating  with  the  ocean,  by  the 
only  outlet  j^rovided  by  nature,  from  the  waters  bordering  upon  their 
shores."  lie  admitted  that  the  possession  of  both  the  shores  of  the 
river  and  its  mouth  had  been  held  to  give  the  right  of  obstructing  or 
intei'dicting  its  navigation  to  the  people  of  other  nations,  inhabiting 
the  u|)i)er  banks;  but  he  maintained  that,  while  the  exclusive  riglit  of 
'■jurisdiction  "  over  a  river  originated  in  the  ''social  compact''  and 
was  "a  right  of  sovereignty."  the  right  of  ''navigating"  the  river 
was  "  a  right  of  nature.  i)receding  it  in  point  of  time,  and  which  the 
sovereign  right  of  one  nation  can  not  annihilate  as  belonging  to  the 
pe()j)le  of  another."  In  su])p()rt  of  this  view  he  invoked  the  acts  of 
the  Congress  of  Vienna,  declaring  the  navigaticm  of  various  rivers  to 
be  "  free  to  all  nations."" 

The  British  plenij^otentiaries  Avere  willing  to  treat  of  this  claim  as 
a  "  concession."  for  which  the  Unted  States  must  offer  a  full  equiva- 
lent, but  expressed  the  hope  that  the  question  of  ''right"  would  not 
even  Ix'  advanced,  since  they  considered  the  claim  to  be  "  equally  novel 
and  extraoi-dinary."  The  views  of  each  side  wer(>  embodied  in  a  for- 
mal protocol,  and  the  (juestion  was  then  ])ermitte(l  temporarily  to  rest.'' 

The  subject  was  rexived  two  years  later,  when  Mr.  (Jallatin  was  sent 
as  minister  to  Kngland.  In  his  instructions  dated  June  ID.  18'2(), 
Mr.  Clay,  who  was  then  Secivtarv  of  State,  maintained  the  claims  of 
the  United  States  both  on  the  ground  of  the  connnon  right  possessed 
by  the  two  |)owers  of  navigating  the  (iivat  Lakes,  and  also  upon  the 
ground  of  the  law  of  nature.  As  a  way  connecting  the  (ireat  Lakes 
iiiid  th(>  ocean.  Mr.  Clay  suggested  that  the  St.  I^awrence  might  be 
considered  as  a  strait  forming  a  link  between  the  two  bodies  of  water, 

"  Am.  state  I'mimts.  For.  Rel.  VI.  T.lT-Tr>S. 

'■  Mr.  i:iHli.  mill.  t..  Kiif^iiUKl.  to  Mr.  Ailaiiis.  Sec.  of  State,  \\va.  12.  1824,  Am. 
Stair  l'ai..Ts.  I'di-.  Ucl.  VI.  7(!V).  772. 


§  131.]  NAVIGATION    OF    AMERICAN    RIVERS.  633 

both  of  which  Iho  inhabitants  of  the  two  countries  possessed  the  right 
to  navigate,  liut.  if  the  channel  of  the  St.  Lawrence  was  to  be  con- 
sidered as  a  river,  he  contended  that  the  right  of  the  United  States 
to  navigate  it  was  ■■'  clearly  and  satisfactorily  maintainable."  He 
pointed  out  and  explained  the  distinction  between  the  claim  of  a 
right  of  way  over  land  and  of  the  right  to  navigate  a  stream  of 
water,  as  well  as  the  distinction,  in  point  of  free  navigation,  between 
a  stream  navigable  only  within  the  jurisdiction  of  one  nation  and  a 
stream  navigable  within  the  dominions  of  two  or  more  nations.  The 
right  of  the  inhabitants  of  the  upper  banks  of  a  river  to  navigate  it  on 
their  way  to  the  sea,  through  the  territories  of  another  sovereign, 
he  maintained  r  ;  a  natural  right.  "From  the  very  nature  of  such 
a  river,"  said  Mr.  Clay,  "  it  must,  in  respect  to  its  navigable  uses,  be 
considered  as  common  to  all  the  nations  who  inhabit  its  banks,  as  a 
free  gift  flowing  from  the  bounty  of  Heaven,  intended  for  all  whose 
lots  are  cast  upon  its  borders."*  He  also  appealed  to  the  regulations 
of  the  Congress  of  Vienna,  which  should,  he  declared,  "  be  regarded 
only  as  the  spontaneous  homage  of  man  to  the  superior  wisdom  of 
the  paramount  Lawgiver  of  the  Universe,  by  delivering  His  great 
works  from  the  artificial  shackles  and  selfish  contrivances  to  which 
they  have  been  arbitrarily  and  unjustly  subjected.""  Mr.  Clay  also 
referred  to  the  practical  inconveniences  which  might  result  if  the 
U?iited  States  should  assume  to  i-estrict  the  use  of  channels  of  the 
river  lying  in  American  jurisdiction.'' 

The  views  of  Mr.  Clay  were  n.ot  accepted  by  the  British  Govern- 
ment, and  the  practical  importance  of  the  subject  was  for  a  time 
rendered  less  apj^arent  by  developments  in  the  course  of  trade  in  the 
United  States,  following  the  opening  of  the  Erie  Canal.'' 

« 'I'liis  i)iissago  i.~  <  noted  liy  Englehai'dt  on  the  title-paf^e  of  bis  Ilistoire  du 
Droit  Fluvial  Coiiventionnel. 

^Mr.  Clay.  Sec.  of  State,  to  Mr.  Gallatin,  min.  to  Enjiland.  .Tune  10.  lS2t;.  Am. 
State  Pai)ers.  For.  Hel.  VI.  7<!2-7G7.  See  also.  id.  7(J7-7<)'.»;  Gallatin's  Writings. 
II.  .'li:5.  :U,S.  .''.CS.  :]~-2.  .•!9.").  40:?;  Sehnyler.  American  Diplonnicy.  2S7-1.*S;» :  IMiilli- 
more.  Int.  I>a\v  (2nd  ed.).  I.  207;  Field,  Int.  Code,  §  ~}~>;  Wharton.  Com.  on 
Am.  Law.  S  101  ;  10  Krit.  &  For.  State  TaiK'rs,  KiSS. 

''  In  184S  a  co'imunucation  was  made  to  the  British  minister  at  Washington, 
acknowlcdjiinir  t!u>  "courtesy"  of  the  British  (Jovernment  and  of  the  sovernor- 
Senoral  of  Canada,  in  ])ermittin<;  the  "  transfer,  via  the  river  St.  Lawrence," 
of  "  two  sm;ill  schooners  to  rei>lac(>  the  steamers  Jrffer.-toii  ;uid  Dallas  lately 
withdrawn  from  the  I'nited  St.ites  revemie  .service  on  lakes  Erie  and  Ontariit." 
(Mr.  Toucey,  .Vet.  Sec.  of  State,  to  Mr.  Crampton,  Brit,  min.,  Nov.  21.  1S4,S. 
MS.  Notes  to  Great  Britain,  VII.  UM».) 

In  1S.10  it  was  stated  as  a  matter  of  public  information  that  the  Canadian 
soverinnent  had  announced  its  deternnnation  not  to  j;r.int  to  .Vmerican  vessels 
the  privileije  of  i)assin!;  "  throuub  the  river  St.  I^awrence  to  the  Atlantic 
Ocean  .  .  .  during  the  i)endency  of  the  Canadian  recii)rocity  bill  which  is  now 
before  Con-ress."  (Mr.  (^hiAtoii,  Sec.  of  State,  to  .Mr.  Buel,  M.  C,  April  12, 
1S5U,  o7  MS.  Dom.  Let.  5U4.) 


G84  NATIONAL    JURISDICTION:    TERRITORIAL   LIMITS.  [§1^1' 

By  Article  I\'.  of  the  ivciprocity  treaty  of  June  5,  1854,  it  was 
a<,nve(l  that  the  inhal)itants  of  the  United  States  should  have  "the 
riirht  to  navipite  the  river  St.  Lawrence,  and  the  canals  in  Canada 
used  as  the  means  of  connnunicatin*^  between  the  (ireat  Lakes  and  the 
Atlantic  Ocean."  as  fully  ami  freely  as  British  subjects,  subject  only 
to  the  same  tolls  and  assessments  as  the  latter.  The  British  (lovern- 
ment  reserved  the  ri<rht  to  suspend  this  })rivile<2:e  on  notice  to  the 
United  States,  but  it  was  a<>:reed  that  the  United  States  mijjcht  in 
such  case  suspend,  if  it  should  think  fit  to  do  so,  the  operation,  so 
far  as  the  Province  of  Uanada  was  concerned,  of  Article  TIL  of  the 
treaty,  which  |)r<)vided  for  the  reciprocal  admission  into  the  United 
States  and  the  British  possessions"  in  North  America  of  certain 
aiticles  free  of  duty. 

The  treaty  of  IS.")!  was  terminated  ^Lirch  17.  IStHi.  pursuant  to  a 
iu)tice  <>iven  a  year  before  under  a  resolution  of  Uon^rress  of  January 
Is.  IS*;:).  President  (irant.  in  his  animal  messafro  of  1S70,  stated 
that  an  unfriendly  disposition  had  '"  been  manifested  on  the  part 
of  Uanada  in  the  maintenance  of  a  claim  of  rit^ht  to  exclude  the 
citizens  of  the  United  States  from  the  navi^ition  of  the  St.  Law- 
i-ence.""  He  drew  attention  to  the  fact  that  this  river  constituted 
"a  natural  outlet  to  the  ocean  for  eijjfht  States,  with  an  atrtrregate 
l)()pulation  of  about  17.()0().()()()  inhabitants,  and  with  an  a<ri:"rt\irate 
tonnaiie  of  ()()1.;5()7  tons  ujxm  the  waters  which  dischar<;e  into  it." 
lie  referred  to  the  discussions  of  Ah*.  Adams  and  Mr.  Ulay  as  having' 
••  inianswerably  demonstrated  the  natural  ria'ht  of  the  citizens  of  the 
United  States  to  the  na\i<>ation  of  the  river."  on  i)rincii)les  ac- 
kn()wled<red  by  the  Uon^fess  of  \'ienna.  This  riofht  did  not  exclude 
the  ri;Lrht  of  the  tei'i'itorial  s()vei'(>i<;n  to  make  re<>ulations  of  police, 
i)Ut  such  rejiulations  should  be  framed  in  a  liberal  spirit  of  comity, 
and  to  that  end  the  United  States  was  ready  to  enter  into  any  reason- 
able ari-an<rement  which  (JrtMit  Britain  mi<>ht  suirirest.  President 
(irant  also  referred  to  the  openin<i"  <>f  various  rivers  in  Europe  and 
America,  and  cite(I  Phillinioiv  to  the  efl'ect  that  while  (Jreat  Britain 
mi<j:ht  irround  her  refusal  to  the  United  States  of  the  free  navii^a- 
tion  f)f  the  St.  Lawrence  •'  U])on  strict  law,"  it  was  equally  difficult 
to  deny  that  in  so  doiuir  >he  "  exercised  harshly  an  extreme  and  hai'd 
law."  and  pursued  a  course  "  iu  <>lai"in<j  and  disci\'ditable  incon- 
sistency "  with  hei-  conduct  in  re-pect  to  the  navigation  of  the 
Mississippi." 

i'.y  Article  XXVI.  of  the  treaty  of  \Vashin.LHon  of  May  S.  1S71, 
it  \\a>  declared  that  the  navi<rati()n  of  the  river  St.  Lawrence,  as- 
icnciiuL^  and  (lescendin<r.  from  the  4.")th  parallel  of  north  latitude, 
whci'e    it    ceases   to   form   the   boundarv   l)etween   the   two  countries. 


"Sec  I'hilliuiun',  Int.  L.iw  (I'lid  ed.),  I.  2U7. 


§  131.]  NAVIGATION    OF    AMERICAN    RIVERS.  635 

"  from.  to.  and  into  the  sea,  shall  forever  remain  free  and  open  for 
the  purposes  of  eonnnerce  to  the  citizens  of  the  Ignited  States,  sub- 
ject to  any  laws  and  regulations  of  (Jreat  Britain,  or  of  the  Domin- 
ion of  Canada,  not  inconsistent  with  such  privilege  of  free  navi- 
gation."' 

On  the  other  hand,  it  was  reciprocally  provided  that  the  navig..- 
Yukon,  Porcupine,    tion  of  the  rivers   Yukon,  Porcupine,  and  Stikine, 

and  stikine.  ascending  and  descending,  from,  to,  and  into  the  sea, 
should  "  forever  remain  free  and  open  for  the  purposes  of  commerce 
to  the  subjects  of  Her  Britannic  ^lajesty  and  to  the  citizens  of  the 
United  States,  subject  to  any  laws  and  regulations  of  either  country 
within  its  own  territory,  not  inconsistent  with  such  privilege  of 
free  navigation."  This  stipulation  is  understood  to  secure  "  the 
right  of  access  and  passage,''  but  not  "  the  right  to  share  in  the 
local  traffic  "'  between  American  or  British  ports,  as  the  case  may  be." 

By  Article  XXVII.  of  the  same  treaty  the  British  Government 
engaged  to  urge  upon  that  of  Canada  to  secure  to  the  citizens  of 
the  United  States  the  use  of  the  Welland,  St.  Lawrence,  and  other 
canals  in  the  Dominion  on  terms  of  equality  with  its  inhabitants; 
and  the  United  States  engaged  to  grant  to  British  subjects  the  use 
of  the  St.  Clair  Flats  Canal  on  terms  of  equality  with  the  inhab- 
itants of  the  United  States,  and  also  to  urge  upon  the  State  govern- 
ments to  secure  to  British  subjects  the  use  of  the  several  State  canals 
connected  with  the  navigation  of  the  lakes  or  rivers  traversed  by 
or  contiguous  to  the  boundary  line  between  the  possessions  of  the 
contracting  parties,  on  terms  of  equality  with  the  inhabitants  of 
the  United  States. 

In  a  note  of  Xovember  23,  1874,  the  British  minister  at  Wash- 
ington stated  that  United  States  barges  and  other  vessels,  with  or 
without  cargo,  clearing  from  ports  on  the  Hudson  River,  were 
allowed  to  j)ass  through  the  Chambly  Canal  to  the  St.  Lawrence, 
and  thence  from  Montreal  through  the  Lachine  Canal  and  through 
the  canals  on  the  Ottawa,  to  the  city  of  Ottawa  or  any  other  desti- 
nation.'' 

December  0.  1S73.  instructions  were  given  to  the  United  States 
collector  of  customs  at  Sitka,  with  a  view  to  enable  British  vessels 
to  enjoy  the  privilege  of  navigating  the  Yukon.  Porcu})ine.  and 
Stikine  rivers.'' 


«  Mr.  Adee. .  Secoiul  Assist.  Sec.  of  State,  to  Mr.  Woodbury,  Jan.  (!.  18!>8.  224 
MS.  Doin.  Let.  229. 

t>  Mr.  ('adwahidi'r.  Actiiij;  Sec.  of  State,  to  Sir  Edward  Tlionitoii.  British  iiiin.. 
Aug.  19,  1870,  MS.  Notes  to  (Jreat  Britain,  XVII.  211. 

<■  Mr.  Fish.  See.  of  State,  to  Sir  Edward  Thornton.  British  niin..  Dec.  1.*?.  187;>. 
MS.  Notes  to  (Jreat  Britain,  XVI.  281.  enclosing  copy  of  a  letter  of  the  Secre- 
tary of  the  Treasury  Of  Dec.  10,  187:5.  relating  to  the  navigation  of  the  Stikine 
River. 


G86  NATIONAL  jurisdiction:  territorial  limits.       [§  l-^l- 

The  iiaviofJition  of  the  Stikine  was  the  subject  of  further  confer- 
ences l)et\veen  the  two  o:overnnients.'' 

Ke<ruhitions  for  the  navigation  of  the  Yukon  and  Porcupine  rivers 
and  their  tributaries  may  he  found  in  Treasury  Department  circuhir 
Xo.  24,  February  '2,  181)8,  while  the  navigation  of  those  rivers  be- 
tween Dawson  and  Rampart  forms  the  subject  of  Treasury  Depart- 
ment circuhir  Xo.  1)8,  June  (>.  181)8.  The  Canadian  reguhitions  for 
the  navigation  of  the  Yukon  in  British  territory  by  Americiin  ves- 
sels were  set  forth  in  Treasury  Department  circular  Xo.  20,  Veh- 
ruary  5.  181»8.  The  United  States  regulations  for  the  navigation 
of  the  Stikine  River  and  its  connecting  rivers  and  lakes  are  eml)odied 
in  Treasury  Dejiartment  circular  Xo.  TO,  May  9,  181)8. 

By  Article  III.  of  the  Webster-Ashburton  treaty  of  August  9,  1842, 
it  is  provided  that  the  navigation  of  the  St.  John, 
where  that  river  is  declared  to  be  the  boundary  be- 
tween the  I'nited  States  and  the  British  dominions,  shall  be  free  and 
open  to  both  parties;  that  '*  all  the  produce  of  the  forest,  in  logs,  lum- 
ber, timber,  boards,  staves,  or  shingles,  or  of  agricultju'e,  not  l)eing 
manufactured,  grown  on  any  of  those  parts  of  the  State  of  Maine 
watered  l)v  the  river  St.  John,  or  by  its  tributaries,  of  which  fact 
reasonable  evidence  shall,  if  required.  l)e  produced,  shall  have  free 
access  into  and  through  the  said  river  and  its  said  tributaries,  having 
their  source  within  the  State  of  Maine,  to  and  from  the  seaport  at  the 
mouth  of  the  said  river  St.  John's,  and  to  and  around  the  falls  of  the 
said  river,  either  by  boats,  rafts,  or  other  conveyance:  that  when 
within  the  Province  of  Xew  Brunswick  the  said  ])r()duce  shall  be  dealt 
with  as  if  it  were  the  produce  of  the  said  Province:  that,  in  like 
manner,  the  inhabitants  of  the  territory  of  the  uj^per  St.  John,  de- 
termined by  this  treaty  to  belong  to  Her  Britannic  Majesty,  shall  have 
free  access  to  and  through  the  river,  for  their  produce,  in  those  parts 
where  the  sai<l  river  runs  wholly  through  the  State  of  Elaine:  ])ro- 
vided.  always,  that  this  agreement  shall  give  no  right  to  either  party 
to  interfere  with  any  regulations  not  inconsistent  with  the  terms  of 
this  ti'eaty  which  the  governments,  respectively,  of  Maine  or  of  X^ew 
Brunswick  may  make  respecting  the  navigation  of  the  said  river, 
where  l)oth  'oanks  thereof  shall  belong  to  the  same  party." 

May  10.  1844.  Mr.  Calhoun.  Secretary  of  State,  instructed  Mr.  Ever- 
ett, then  minister  to  England,  to  bring  to  the  attention  of  Her  Britan- 
nic Afajesty's  Government  the  fact  that  the  legislature  of  Xew  Bruns- 
wick had  imi)osed  an  ex|)ort  duty  of  a  shilling  a  ton  on  all  timber 
sjiij)|)e(l  from  any  port  in  the  jirovince.  the  authorities  of  ^faine  con- 
tending that  tlie  duty  conJravened  the  provision  of  Article  TIL  of  the 
ti-eaty  of  ls42  as  to  "  free  access  "  to  the  i)ort  at  the  mouth  of  the  St. 


"  Mr.  Kv.irts,  Sec.  of  Stiite.  to  Sir  Ivl\v:ir<l  Tlionitoii.  P.rit.  iiiin..  Oct.  10.  1S7S. 
MS.  Notes  lo  (Ireat  liritaiii,  XVII.  015. 


§  131.]  NAVIGATION    OF   AMERICAN    RIVEES.  637 

John  for  Maine  luinbor  and  produce.  Lord  Aberdeen  on  the  9th  of 
December  replied  that  it  was  no  viohition  of  the  treaty,  as  American 
and  Canadian  articles  were  treated  alike,  the  treaty  i)rovJding  that 
JNIaine  lumber  and  produce  should,"  when  within  the  Province  of  New 
13runswick,  be  dealt  with  as  if  it  Avere  the  produce  of  the  said  Prov- 
ince." (ireat  Britain  had,  said  Lord  Aberdeen,  given  a  liberal  con- 
struction to  this  article  by  allowing  the  produce  of  Maine,  when  once 
brought  within  the  province  of  New  Brunswick,  to  be  exported 
thence,  and  imported  into  England  and  the  British  possessions,  on 
payment  of  the  same  duties  as  the  produce  of  the  province  itself." 

It  is  to  the  timber  or  other  })roduce  of  Maine,  without  regard  to  the 
nationality  of  the  owner,  that  the  treaty  of  1842  secures  unimpeded 
access  to  the  ocean  by  the  St.  John.'' 

A  complaint  having  been  made  by  Mr.  John  Kilburn,  a  British  sub- 
ject, to  the  etl'ect  that  he  was  called  on  to  pay  customs  duties  on  his 
equii)ment  required  in  the  driving  of  logs  on  the  St.  John,  the  British 
ambassador  at  AVashington  subsequently  conveyed  to  the  Department 
of  State  a  dispatch  from  the  governor-general  of  Canada,  expressing 
his  high  ai)i)reciati()n  of  the  prompt  action  taken  by  the  United  States 
Treasury  Department  '"  to  secure  the  observance  of  the  Ashburton 
treaty."  «• 

By  Article  XXXI.  of  the  treaty  of  May  8,  1871,  (n-eat  Britain 
engaged  '*  to  urge  upon  the  Parliament  of  the  Dominion  of  Canada 
and  the  legislature  of  New  Brunswick  that  no  export  duty,  ov  other 
duty,  shall  be  levied  on  lumber  or  timber  of  any  kind  cut  on  that  por- 
tion of  American  territory  in  the  State  of  Maine  watered  by  the  river 
St.  John  and  its  tril)utaries,  and  floated  down  that  river  to  the  sea, 
when  the  same  is  shipped  to  the  United  States  from  the  Province  of 
Kew  Brunswick." 

March  II),  1875,  the  British  minister  at  AVashington  was  requested 
to  furnish  any  information  which  he  might  be  able  to  obtain  in  regard 
to  a  report  that  preparations  were  being  made  to  construct  a  bridge 

"  P.r.  iUKi  For.  Stnto  Piii)»"i'«.  I^I-  •►^''-t.  i^-'^T. 

f'  Mr.  Frolinj^lmyson.  Sec.  of  State,  to  Mr.  Lowell,  iiiin.  to  England.  May  1(5, 
18H4,  .MS.  lust.  (Jroiit  Britain.  XXVII.  201.  "The  iiistriution  to  Mr.  Lowell 
...  of  May  1(),  18S4,  .  .  .  was  the  last  of  a  correspondeiu-o  in  relation  to 
tlio  obstruction  of  waterways  in  Canada.  It  was  in  reply  to  his  No.  742  of 
^March  IS.  1S,S4.  which  in  turn  was  in  rosi)ouse  to  the  Department's  No.  (MO 
of  .Inly  25,  IHH'A,  on  that  subject.  A  coi)y  of  this  instruction  .  .  .  will  be 
found  on  pj).  44r)-447  of  the  vohnne  of  Foreij^n  Relations  for  1SS:{.  Mr.  Lowell 
:ipi)arently  made  no  reply  to  the  Department's  instruction  of  May  K!.  lS8-t." 
(Mr.  Olney,  Sec.  of  State,  to  Attorney-CJeneral.  Dec.  5,  ISO.").  2(Ki  MS.  Dom.  Let. 
•MC>.) 

'■  Mr.  Olney.  Sec.  of  State,  to  Sec.  of  Treasury,  March  14.  IS'.Mi,  -JOS  MS.  Dom. 
Let.  51o,  enclosing  a  note  from  the  British  ambassador  of  March  11,  1896. 


088  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  131. 

across  the  St.  Jolin's  on  stneral  piers  about  a  mile  below  the  Tobique 
River,  which  bridge,  if  constructed,  would  "  impede  navio^ation  or 
Miake  an  obstruction  in  the  river  and  prevent  the  free  access  into  and 
through  the  St.  John's  of  lumber  and  other  articles,  which  is  guaran- 
teed by  treaty  i)rovisions."  The  minister  subsequently  stated  that  at 
the  i)oint  where  the  bridge  was  IxMiig  constructed  the  river  had  a 
width  of  ."i.'iO  feet  at  low  water  and  nearly  i>00  at  extreme  high  water; 
that  the  bridge  had  five  spans  of  1()0  feet  each  and  a  draw:  that 
provision  was  made  for  the  passage  of  rafts  and  logs  and  of  such 
boats  and  steamers  as  frequented  the  river  during  the  season  of  navi- 
gation; and  that  there  was  nothing  in  the  location  of  the  jjiers  that 
would  cause  any  obstruction  to  the  navigation  of  the  river." 

The  legislature  of  the  Province  of  New  Brunswick,  by  an  act  of 
March  27,  1845,  incorporated  a  company  to  erect  and  maintain  a 
boom  at  ^A'oodstock.  at  or  near  the  month  of  the  Meduxnikeag  River, 
a  tributary  of  the  St.  John.  By  an  amendatory  act  of  April  8,  1874, 
aj^parently  passed  for  the  purpose  of  giving  effect  to  the  treaty  of 
1871,  it  was  pi-ovided  that  "*  no  boomage  shall  be  chargeable  by  the 
said  company  for  logs  or  other  timber  intended  to  be  dricen  into  t/ie 
iSf.Jo/ntRircrr'' 

By  Article  II.  of  the  treaty  between  the  Ignited  States  and  (Jreat 
Britain  of  June  15.  184('>,  with  regard  to  limits  west- 
ward of  the  Rocky  Mountains,  it  is  stipulated  that 
from  the  point  where  the  forty-ninth  parallel  of  north  latitu(l(^  shall 
be  found  to  intersect  the  great  northern  branch  of  the  Columbia 
River  "'the  navigation  of  the  said  branch  shall  be  free  and  open  to 
the  Hudson's  Bay  Company,  and  to  all  British  subjects  trading  with 
the  same,  to  the  point  where  the  said  branch  meets  the  main  stream  of 
the  Colunil)ia.  and  thence  down  the  said  main  stream  to  the  ocean, 
with  five  access  into  and  through  the  said  river  or  rivers,  it  being 
understood  that  all  the  usual  j^ortages  along  the  line  thus  described 
shall,  in  like  manner,  be  free  and  oj^en.  In  navigating  the  said  river  or 
rivers.  British  subjects,  with  their  goods  and  produce,  shall  be  treated 
on  the  same  footing  as  citizens  of  the  United  States;  it  being,  how- 
ever, always  undei-stood  that  nothing  in  this  article  shall  be  construed 
as  preventing  or  intended  to  prevent  the  (jovernment  of  the  United 
States  from  making  any  regulations  respecting  the  navigation  of  the 
said  river  or  rivers  not  iiu-onsistent  with  the  i)resent  treaty.'' 

"  .Mi-.  Fisli.  Sec.  of  Stntc.  to  Sir  Kdward  Thornton,  British  niin..  .Mareli  10, 
!S7.'..  .MS.  .Notes  to  (ireat  P.ritain.  XVI.  ,".:',.");  Mr.  Fish,  See.  of  State,  to  the 
lion.  H.  Hamlin.  Oct.  L".»,  187."..  IKi  MS.  Doiu.  Let.  ."'.TC. 

''Mr.  <;n-sli:ini.  Sec.  of  State,  to  Mr.  Hale.  M.  C,  April  20,  ISO.S.  101  MS. 
l><ini.  Let.  .■'.4'J.  Sec.  also.  Mr.  Freliiifrhuysen.  Sec.  of  State,  to  Mr.  Lowell,  luiu. 
to  Kiiglaml,  May  HJ.  ISSi.  MS.  Inst.  Great  Britain,  XXVII.  201. 


§  131.]  NAVIGATION    OF    AMERICAN    RIVERS.  639 

The  treaty  contains  no  stipulation  Avith  re<jard  to  the  navijjation  of 
the  river  within  British  territory. 

As  to  the  cliiinis  of  the  Hudson's   Bay  Company,   see   Moore,   Int.   Arbi- 
trations. I.  U."):>,  •2(V2. 

"  On  principk^  there  is  a  great  difference  between  the  rights  of  the 
riparian  popuhition  of  the  upper  tributaries  of  a  river  and  the 
riparian  population  of  the  river  as  it  descends  to  the  sea.  To  the  for- 
mer access  to  the  sea  is  essential  and  can  be  had  without  any  in- 
vasion of  the  rights  of  the  latter.  To  the  latter  penetration  into  the 
territory  of  the  former  is  not  essential  and  may  be  productive  of  many 
embarrassments  to  the  country  which  is  thus  explored. 

"  Trading  in  the  latter  case  can  only  be  with  the  inhabitants  of  the 
inland  state.  Trading  in  the  former  case  is  understood  to  be  limited 
to  trading  beyond  the  sea.  And  hence  it  has  been  held  in  many  cases 
in  which  the  right  of  free  egress  to  the  sea  by  the  inhabitants  of  the 
upper  territory  is  given  that  this  does  not  involve  a  right  of  free 
access  to  the  interior  by  the  inhabitants  of  the  lower  country." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Lundy,  July  25,  1885,  156  MS.  Dom.  Let. 

358. 

By  Article  VI.  of  the  treaty  of  Guadalupe  PTidalgo  of  February 
Rio    Grande    and    '2,  1848.  it  was  agreed  that  the  vessels  and  citizens  of 

the  Colorado.  the  United  States  should  in  all  time  have  "  a  free  and 
uninterruj)te(l  i)assage  by  the  Gulf  of  California,  and  by  the  river 
Colorado  below  its  contluence  with  the  Gila,  to  and  from  their  posses- 
sions situated  north  of  the  boundary  line  "  laid  down  in  the  treaty. 

By  Article  "VII.  it  was  agreed  that  the  navigation  of  the  river  Gila, 
and  that  part  of  the  Kio  (Jrande  (Rio  Bravo)  lying  below  the  south- 
ern boundary  of  New  Mexico,  where  it  formed  the  boundary  between 
the  two  countries,  should  be  "  free  and  connnon  to  the  vessels  and  cit- 
izens of  both  countries,-'  and  that  neither  should,  without  the  con- 
sent of  the  other,  "  construct  any  work  that  may  impede  or  interrupt, 
in  whole  or  in  i)art,  the  exercise  of  this  right." 

The  territorial  situation  having  been  changed  by  the  cession  to  the 
United  States  of  the  Mesilla  Valley,  by  the  treaty  of  December  30, 
18."):},  it  was  stipulated  by  the  same  treaty  (Art.  IV.)  that  the  vessels 
and  citizens  of  the  United  States  should  continue  to  have  free  and 
uninterru])ted  i)assage  by  the  Gulf  of  California  and  the  river  Colo- 
rado to  and  from  their  jiossessions  north  of  the  new  boundary;  and 
tliat  the  stipulations  and  restrictions  of  the  treaty  of  (luadalupe 
Hidalgo  as  to  the  Rio  (irande  should  remain  in  force  only  below  lat- 
itude U°  -IT'  30". 


(340  NATIONAL   JURISDICTION  :    TERRITORIAL   LIMITS,  [§  1^1- 

Tlu'  provisional  diiTotor  of  the  Argentine  Confederation,  Cxeneral 
La  Plata  Parana  Urquiza,  by  a  decree  of  October  3,  1852,  declared  the 
Paraguay,  and  navigation  of  the  rivers  Parana  and  Uruguay  to  be 
Uruguay.  open  to  the  merchant  vessels  of  all  nations."     This 

privilege  was  confirmed  by  treaties  with  France,  Great  Britain,  and 
the  United  States,  all  ccmcluded  July  10.  1858.''  Dissatisfied  with 
this  policy,  the  State  of  Buenos  Ayres.  which  had  sought  to  control 
the  conunercial  oi)portunities  which  the  rivers  afforded,  protested 
against  the  treaties  and  withdrew  from  the  Confederation.  The 
treaty  i)owers  then  determined  "  to  bestow  the  moral  weight  and 
influence  of  dii)lomatic  relations  upon  the"  Government  which  had 
been  prompt  to  recognize  the  liberal  conunercial  principles  of  the 
age.**' 

Paraguay,  by  a  treaty  of  February  4,  1859,  conceded  "  to  the  mer- 
chant flag  of  the  citizens  of  the  United  States  of  America  the  free 
navigation  of  the  Kiver  Paraguay  as  far  as  the  dominions  of  the 
Emj)ire  of  Brazil,  and  of  the  right  side  of  the  Parana  throughout 
all  its  course  belonging  to  the  liei)ublic."'' 

May  8.  1850.  Mr.  Clayton,  as  Secretary  of  State,  addressed  to  the 
Secretary  of  the  Xavy  a  letter  in  which  he  stated 
that  the  Department  of  State  had  "  for  some  time 
past  had  in  contemijlation  certain  measures  for  procuring  for  the 
citizens  of  the  United  States  the  navigation  of  the  river  Amazon  and 
some  of  its  tributaries."  Keferring  to  "  the  advantages  to  be  antici- 
pated from  a  free  transit  on  that  mighty  river,"  Mr.  Clayton 
requested  that  a  ship  of  Avar  be  sent  to  explore  the  stream  and  its 
tributaries.  If  it  should  l)e  deemed  necessary  to  secure  from  the 
Brazilian  (lovernment  a  special  permit  for  the  })urpose,  Mr.  C^layton 
stated  that  a  cojn'  of  his  letter  in  the  hands  of  the  counnander  of  the 
ship  would,  when  delivered  to  the  United  States  minister  at  Rio  de 
Janeiro,  be  regarded  by  the  latter  as  an  instruction  to  use  every  exer- 
tion to  procure  such  a  permit  as  well  as  any  other  factilities  that 
might  be  deemed  essential." 

A  dirt'ereut  plan,  however.  Avas  afterwards  adopted.  On  Feb- 
ruary 15.  1S51.  tlu'  Secretary  of  the  Navy  instructed  Lieut.  William 
L.  Herndon.  with  the  assistance  of  Passetl  Midshipnum  Lardner  Gib- 

c42  P.r.  Mild  For.  State  Tapors.  i:n."..  Soc.  i\\:m),  .Mr.  Webster,  8ec.  of  State,  to 
Mr.  Miller.  .Tune  11.  IS.".:.'.  MS.  Inst.  Bolivia.  I.  11  :  Sclmyler,  Am.  Diplomacy,  319. 

'^42  lir.  and  For.  State  Tapers.  ."..  718;  44  id.  1071. 

'■Mr.  Cass.  Sec.  of  State,  to  Mr.  Lamar.  Oct.  2:i,  18.57,  MS.  Inst.  Arg.  Kep. 
XV.   1i:;. 

''  See.  as  to  the  case  of  the  Watc)-  WUcti  and  the  nej?otiation  of  the  treaty  of 
lS.-.!t.  Moore.   Int.  Arhitratioii.  II.  1487.  14!>:{. 

'Mr.  Clayton.  Sec  of  State,  to  Mr.  Preston,  Sec.  of  Navy,  May  8,  1850,  38 
MS.  Dom.  Let.  'Jl. 


§  131.]  NAVIGATION    OF    THE    AMAZON.  641 

bon,  to  set  out  by  land  from  the  Pacific  side  of  the  continent  and 
crossing  the  Cordilleras  to  explore  the  Amazon  from  its  source  to  its 
mouth.  This  exploration  was  duly  nuide.  The  report  of  Lieutenant 
Herndon.  dated  at  Washington,  January  '2(\  1858.  was  communicated 
b}'  President  P'illmore  to  Congress  on  the  9th  of  the  following 
month,  and  was  pul:)lished  in  two  volumes." 

On  July  2(),  1851,  not  long  after  Lieutenant  Herndon  set  out  from 
Lima  on  his  expedition.  Mr.  J.  Kandolph  Clay,  then  United  States 
minister  at  that  capital,  concluded  with  the  Government  of  Peru  a 
treaty  of  friendship,  commerce,  and  navigation,  by  Article  X.  of 
which  it  was  agreed  that  citizens  of  the  L^nited  States  who  might 
estal)lish  a  line  of  steam  vessels  to  navigate  between  the  different  ports 
of  entry  within  the  Peruvian  territories  should  enjoy  all  the  privi- 
leges and  favors  given  to  any  other  association  or  company  whatso- 
ever, and  that  the  steam  vessels  of  each  contracting  party  should  not 
be  subjected  in  the  ports  of  the  other  to  any  duties  of  tonnage  or  to 
any  similar  duties  other  than  those  paid  by  any  other  association  or 
company.  By  Article  III.  most-favored-nation  treatment  was  se- 
cured in  both  countries  in  matters  of  commerce  and  navigation. 

As  it  evidently  was  the  design  of  the  United  States,  in  its  efforts 
to  secure  the  free  navigation  of  the  Amazon,  to  obtain  the  support  of 
the  countries  on  the  west  coast  of  South  America,  in  whose  territo- 
ries tributaries  of  the  stream  were  found,  the  Government  of  Brazil 
took  measures  to  counteract  the  movement.  A  minister  was  sent  to 
Pern  and  Bolivia,  and  on  October  28,  1851,  a  treaty  Avas  signed 
between  Peru  and  Brazil  by  which  it  was  agreed  that  the  navigation 
of  the  Amazon  '*  should  belong  exclusively  to  the  res})ective  States 
owning  its  banks,"  and  that  if  a  Brazilian  company  for  steam  naviga- 
tion were  formed  Peru  would  grant  it  a  yearly  subsidy.'' 

BoHvia,  l)v  a  decree  of  January  27,  1858.  declared  the  waters  of  the 
navigable  rivers  which,  flowing  through  the  Bolivian  territory,  dis- 
charged themselves  into  the  Amazon  and  the  Plate,  to  be  free  to  the 
commerce  and  navigation  of  all  nations  of  the  globe.'" 

April  15,  1858,  the  (iovernment  of  Peru,  moved  by  the  representa- 
tions (}f  Mr.  Clay,  issued  a  decree  by  which  the  towns  of  Loreto  and 
Xauto  were  made  ports  of  entry,  and  the  privileges  given  to  Brazil 
were  extended  to  all  the  most-favored  nations.  The  Brazilian  min- 
ister at  Lima  protested  against  this  decree,  and  an  envoy  was  sent  by 
Brazil  to  New  (iranada,  P^cuador,  and  Venezuela  for  the  jjurpose  of 
making  treaties  to  close  the  Amazon  to  the  Ignited  States,  on  the 

"  S.  Kx.  !)(»<•.  :?<;.  :V2  ('(»ii«.  '2  soss.  :  II.  Ex.  Doc-.  .>},  .'^  Cong.  1  sess.,  parts  1 
iiiid  1'. 

''Schuyler.  AiiicricMii  Diplomacy.  'XiU. 
f .").")  P>r.  niul  For.  State  I'aiters,  505. 

H.  Doc.  551 11 


642  NATIONAL   JURISDICTION  :    TERRITOKIAL    LIMITS.  [§  131. 

ground  that  the  navigation  of  the  river  "  belonged  of  right  exchi- 
sively  to  the  nations  owning  its  banks."  On  July  13,  1853,  however, 
the  Peruvian  (lovernment  sent  a  circular  to  Brazil.  New  (iranada, 
Ecuador,  and  Venezuela,  inviting  them  to  treat  for  the  opening  of 
the  river." 

With  the  advent  of  the  Administration  of  l^resident  Pierce  the 
etfort  to  obtain  the  opening  of  the  Amazon  was  vigorously  renewed 
by  Mr.  Marcy.  as  Secretary  of  State.  On  April  4,  1853.  the  Bra- 
zilian minister  at  Washington  inquired  concerning  certain  rumors  of 
naval  and  connnercial  ex])editions  to  the  Amazon.  Mr.  Marcy,  in  a 
note  of  April  '20,  1853,  and  again  in  a  note  of  September  "2,  1853,  dis- 
claimed any  intention  to  ust>  force.  He  stated,  however,  in  his  second 
note  that,  in  his  opinion,  no  means  would  be  more  certain  to  develop 
the  vast  resources  of  the  Brazilian  Empire  "  than  the  removal  of 
unnecessary  restrictions  upcm  the  navigation  of  the  Amazon,  and 
especially  to  the  passage  of  vessels  of  the  United  States  to  and  from 
the  territories  of  Bolivia  and  Peru,  by  way  of  that  river  and  its  trib- 
utaries."' '' 

"  The  most  important  object  of  your  mission — an  object  to  which 
you  will  devote  your  early  and  earnest  efforts — is  to  secure  the  citi- 
zens of  the  United  States  the  free  use  of  the  Amazon.  There  are 
several  republics  with  which  our  countrymen  have  commercial  inter- 
course situated  on  the  upper  Avaters  and  tributaries  of  that  great 
river.  With  these  state.s  they  would  carry  on  an  extensive  trade  were 
not  our  vessels  excluded  from  approaching  their  internal  ports  by 
the  selfish  and  unjustifiable  policy  of  the  Brazilian  Government, 
which  claims  and  has  hitherto  exercised  the  right  to  obstruct  the 
trade  of  the  countries  bordering  upon  and  contiguous  to  the  Amazon 
with  foreign  nations  through  this  great  natural  highway.  The 
assumi)tion  and  exercise  of  this  right  is  not  only  injurious  to  the 
interests  of  the  states  on  the  navigable  waters  of  the  Anuizon,  but 'to 
all  other  nations  wishing  to  use  these  waters  for  the  purpose  of  com- 
mercial intercourse. 

"This  restricted  policy  which  it  is  understood  Brazil  still  persists 
in  maintaining  in  regard  to  the  navigable  rivers  passing  through  her 
territories  is  the  relic  of  an  age  less  enlightened  than  the  present. 
The  doctrine  upon  this  sul)ject  is  clearly  presented  in  the  following 
extract  from  WiieatonV  Elements  of  International  Law: 

••  •  Things  of  which  the  use  is  inexhaustible,  such  as  the  sea  and  run- 
ning water  (including,  of  course,  navigable  streams)  cannot  be  so 
iipjiropriated  as  to  exclude  others  from  using  these  elements  in  any 
maimer  wliicli  does  not  occasion  a  loss  or  inconvenience  to  the  propri- 

o  Scluiyler.    American   I>iplouiacy,  332,  333. 
b  Id.  336. 


§  131.]  NAVIGATION    OF    THE   AMAZON.  643 

etor.  This  is  what  is  called  an  innocent  use.  Thus  we  have  seen 
that  the  jurisdiction  possessed  by  one  nation  over  sounds,  straits,  and 
other  arms  of  the  sea  leading  through  its  own  territory  to  that  of 
another,  or  to  other  seas  common  to  all  nations,  does  not  exclude 
others  from  the  right  of  innocent  passage  through  these  communi- 
cations.' 

"  The  soundness  of  this  principle  cannot,  I  presume,  be  contro- 
verted by  the  Imperial  Government  of  Brazil.  It  will  not,  therefore, 
it  is  believed,  without  denying  rights  to  our  citizens  to  which  they  are 
fairly  entitled,  longer  withhold  from  them  the  use  of  the  Amazon  to 
carry  on  commercial  intercourse  with  Ecuador,  Peru  and  Bolivia, 
New  Granada,  and  Venezuela.  You  will  claim  from  it  the  renuncia- 
tion of  any  authority  she  may  have  heretofore  exercised  to  prevent  the 
passage  of  the  merchant  vessels  of  the  United  States  up  and  do^An 
that  river  in  their  legitimate  commerce  with  any  of  these  republics. 
You  are  instructed  to  claim  for  our  citizens  the  use  of  this  natural 
avenue  of  trade.  This  right  is  not  derived  from  treaty  stipulations — 
it  is  a  natural  one — as  much  so  as  that  to  navigate  the  ocean — the 
common  highway  of  nations.  By  long  usage  it  is  subject  to  some 
restrictions  imposed  by  nations  through  whose  territories  these  navi- 
gable rivers  pass.  This  right,  hoAvever,  to  restrict  or  regulate  com- 
merce, carried  to  its  utmost  extent,  does  not  give  the  power  to 
exclude  such  rivers  from  the  common  use  of  nations.  .  .  . 

"  AVe  claim  for  this  continent  the  same  privileges  which  nearly 
forty  years  ago  were  arranged  by  common  consent  and  have  been 
ever  since  applicable  to  the  navigable  waters  of  Europe.  The  regu- 
lations adopted  by  the  allied  sovereigns  at  the  Congress  of  Vienna 
in  1815  on  this  subject  were  but  the  recognition  of  the  law  of  nations 
in  regard  to  the  use  of  navigable  rivers  passing  through  ditferent 
realms." 

Mr.  Marcy.  Sec.  of  State,  to  Mr.  Trousdale,  min.  to  Brazil,  Aug.  8,  1853, 
MS.  Inst.  Brazil,  XV.  215. 

In  a  letter  to  a  person  who  Inquired  whether,  if  ho  should  send  a  vessel 
to  Peru  by  way  of  the  Amazon,  the  United  States  would  protect  him 
in  the  voyage,  Mr.  Marcy  stated  that,  although  the  claims  of  Brazil 
as  to  the  control  of  the  Amazon  were  questioned,  the  United  States 
could  not  "  for  a  moment  advise  or  countenance  any  adventurous 
infringement  of  them."  He  added  that  it  was  hoped  that  friendly 
negotiations  would  remove  existing  obstacles.  (Mr.  Marcy.  Sec.  of 
State,  to  Mr.  Collins,  .July  5.  1858.  41  MS.  Dom.  Let.  441.) 

The  Brazilian  (iovernment  made  an  imfavorable  rei)ly  to  the  jtroposal  of 
free  navigation  submitted  by  Mr.  Trousdale  under  the  instructions 
of  Aug.  8,  18.5.3.     (Schuyler.  Am.  Diplomacy.  .'^41-:!4:i.) 

A  copy  of  these  instructions  was  sent  to  Mr.  Green.  I'nited  States  min- 
ister to  New  Granada,  with  directions  to  present  the  subject  to  the 
Government  of  that  country.  Mr.  Marcy  observed  that  New  Gra- 
nada had  not  as  yet  adopted  the  ix)licy  of  Peru  and  Bolivia  in  respect 


()44  NATIONAL  jurisdiction:   territorial  limits.        [§131. 

to  the  iiitrodmtioii  of  foivign  trude  to  lier  territory  through  the 
Auiiizoii  {iiid  its  tributaries,  and  tliat  lier  possession  of  iwrts  on  both 
oc-oans  relieved  her  of  the  necessity  of  endeavoring  to  free  that 
river  from  tlie  restrictions  imposed  by  Brazil :  but  he  directed  Mr. 
(Jrcen  to  imitress  upon  the  New  (Jranadian  Government  "the  de- 
cided advantages  that  \v«)uld  result  to  it,  in  common  with  other 
states,  from  tlie  adoption  of  a  lll)eral  i»olicy  in  i*esi»ect  to  the  free 
navigation  of  the  Amazon."  (Mr.  Marcy.  Sec.  of  State,  to  Mr.  Green, 
nun.  to  New  Granada.  Aug.  L"),  18."):^,  ilS.  Inst.  Colombia,  XV.  1(33.) 

A  coi)y  of  the  instructions  to  Mr.  Trousdale  was  also  connnunicated  to 
the  cliarge  d'affaires  of  the  United  States  in  Bolivia.  In  communi- 
cating it  Mr.  Marcy  said:  "Various  causes  have  influenced  the 
United  States  to  submit  passively  to  the  pretensions  to  the  exclusive 
control  exercised  so  illiberally  by  his  Imperial  Majesty  over  this 
mighty  river  | Amazon].  The  ancient  restrictive  policy  to  which 
Brazil  still  obstinately  adheres  is  in  conflict  with  the  spirit  of  the 
present  enlightened  age.  which  claims  the  fne  use  of  all  the  natural 
means  of  international  comnumication.  obviously  designed  by  a  wise 
Providence  for  the  connnon  benefit  of  all  ci\ilized  nations."  (Mr. 
Marcy.  Sec.  of  State,  to  Mr.  Dana,  charge  d'affaires  to  Bolivia,  Nov. 
1,  18.">3.  MS.  In.st.  Bolivia.  I,  IS.) 

In  an  instruction  to  Mr.  White.  chargC'  d'aflaires  to  Ecuador,  enclosing  a 
copy  of  the  instructions  to  Mr.  Trousdale.  Mr.  Marcy  said:  "The 
Hei>ul>lics  of  Venezuela.  New  (Jranjtda.  Ecuador.  I'eru,  and  Bolivia 
are  all  interested  in  ju-ocuring  the  removal  of  the  restrictions  which 
now  practically  deprive  them  in  a  considerable  degree  of  the  advan- 
tages and  resoiu'ces  of  that  jiortiou  of  their  respective  territories 
which  would  l)e  thereby  |  by  the  o|)ening  of  the  Amazon  |  opened  to 
an  extensive  and  profitable  foreign  commerce.  .  .  .  Bolivia  and 
IVrn  have  already  taken  steps  for  testing  the  extent  to  which  the 
I)retensions  of  Brazil  may  be  maintained.  ...  It  would  be  well 
for  you  ...  to  present  to  the  Government  tlie  advantages  that 
would  accrue  to  Ecuador  in  following  the  example  of  Bolivia  and 
Peru.  For.  when  all  of  the  five  States  whose  fertile  regions  are 
watered  liy  tlie  .\mazon  and  its  tributaries  shall  have  thrown  open 
their  rivers  and  i)orts  to  foreign  commerce  it  is  thought  that  Briizil 
will  not  be  able  long  to  witlistand  the  moral  power  which  will  thus  be 
arrayed  against  her  selfish  and  restrictive  policy.  And  I  speak 
thus  confiilently  as  to  the  probable  course  of  E<'uador.  when  this 
subject  shall  be  directly  presented  to  her  attention,  because  Mr.  Clay, 
our  present  minister  at  Lima,  has  alre.-uly  addressed  the  Ecuadorian 
minister  in  Peru  upon  tliis  subject,  and  has  received  from  him  every 
encouragement  to  believe  that  the  I'roject  is  viewed  not  unfavorably 
by  his  (Jovernmeiit."  (.Mr.  .Marcy.  Sec.  of  State,  to  Mr.  White, 
ch.irge  d'aft'aires  to  Ecuador.  .\ug.  li(».  1S.">;5,  MS.  Inst.  Ecuador,  I.  3(5.) 

President  Pierce,  in  his  annual  message  of  December,  18.")3,  said:  "Our 
minister  at  Brazil  is  instructed  to  obtain  a  relaxation  of  that  policy 
and  to  use  his  efforts  to  induce  the  Brazilian  (Jovernment  to  open 
to  common  use.  under  ])roper  safeguards,  this  great  natural  highway 
for  international  trade." 

For  memorial  of  Lieut.  Maury  on  the  free  navigation  of  the  Amazon, 
.<ee  II.  .Mis.  Doc.  lili.  :V.\  Cong.  1  ses.s. 

See.  as  to  the  free  navigation  of  rivers.  II.  Report  2'.)~>.  31  Cong.  1  sess. 

As  to  explorations  of  the  Amoor  River,  see  II.  Ex.  Doc.  98,  35  Cong.  1  sess. 


^  131.]  NAVIGATION    OF    THE    AMAZON.  645 

By  a  decree  of  January  4,  1854,  the  Peruvian  Government  modified 
the  decree  of  the  previous  April  by  restricting  the  use  of  the  Amazon 
to  Brazilians,  subject  to  existing  treaties.  The  treaty  between  Brazil 
and  Peru  of  October  "23,  1851,  expired  October  23,  1858,  and  a  '*  fluvial 
convention  "  between  the  two  powers  was  then  signed,  by  which  Peru 
was  to  have  provisionally  the  navigation  of  the  Amazon,  paying 
only  charges  for  lighting,  pilotage,  and  police."  In  18(»2  the  Peru- 
vian Govermnent  gave  notice  of  th.e  termination  of  the  treaty  of 
July  2G,  1851,  which  came  to  an  end  December  9.  1868. 

Bolivia,  however,  concluded  Avith  the  United  States.  May  13,  1858, 
a  treaty  of  commerce  and  navigation,  by  Article  XXVI.  of  which  it 
was  declared  that,  "  in  accordance  with  fixed  principles  of  interna- 
tional law."  Bolivia  regarded  '*  the  rivers  Amazon  and  La  Plata,  with 
their  tributaries,  as  highwavs  or  channels  open  by  nature  for  the 
commerce  of  all  nations;"  and  that  she  invited  commercial  vessels 
of  the  United  States  and  of  all  other  nations  *'  to  navigate  freely  in 
any  part  of  their  courses  which  pertain  to  her,  ascending  those  rivers 
to  Bolivian  ports  and  descending  therefrom  to  the  ocean,  subject  only 
to  the  conditions  established  by  this  treaty  and  to  regulations  sanc- 
tioned ...  by  the  national  authorities  of  Bolivia,  not  inconsistent 
with  the  stipulations  thereof."  Further  stipulations  as  to  the  naviga- 
tion of  the  rivers  in  question  were  embodied  in  Article  XXVII.^ 

The  navigation  of  the  Amazon  was  at  length  declared  by  the  Gov- 
ernment of  Brazil,  by  a  decree  of  December  7,  18GG,  to  be  open  to 
vessels  of  all  nations  from  September  7,  18G7.  This  was  followed 
by  a  regularatory  decree  of  July  31,  18G7.  By  these  decrees  the  Ama- 
zon was  declared  to  be  open  as  far  as  Tabatinga,  on  the  frontiers  of 
Brazil ;  the  riA'er  Tocantins,  as  far  as  Cameta ;  the  Tapajoz,  as  far  as 
Santarem:  the  Madeira,  as  far  as  Borba ;  the  Xegro,  as  far  as 
Manaos;  and  the  San  Francisco,  as  far  as  Penedo.''  By  a  decree  of 
January  25,  1873,  the  right  to  navigate  the  Madeira  was  extended 
beyond  Borba  to  Santo  Antonio,  its  first  fall."  In  1891  the  State  of 
Amazonas  temporarily  levied  a  transit  tax  on  rubber  shipped  from 
Peru  to  the  United  States  by  the  Amazon:  The  tax  was  admitted  to 
be  illegal  under  the  constitution  of  Brazil,*^ 

December  17,  18(58,  the  President  of  Peru  issued  a  decree  declaring 
the  navigation  of  all  the  rivers  of  that  Republic  to  be  "  open  to  mer- 
chant vessels,  whatever  Ix*  their  nationalitv."  '' 


"Dispatch  of  Mr.  Clay,  Min.  to  IVru.  No.  477.  Nov.  21.  18.").S.  MSS.  Dept.  of 
State. 

6  See  For.  Rel.  1871,  41. 

'■.">8  Br.  &  For.  State  Papers,  .">1.  5.")2-5G7 ;  Dip.  Cor.  1S()7.  II.  250.  257. 

dFor.  Uel.  181)9.  123. 

<■  For.  Rel.  1891.  40.  41,  4.3 ;  1893,  42. 

f  Sehuyler.  Aiueriean  Diplomacy,  .■i4.'j,  .*i44,  citing  Collection  of  Peruvian  Trea- 
ties. Lima.  187(5,  p.  115:  Lawrence.  Wheaton  (ed.  18G3),  3l>3-3G5 ;  Collection  of 
Oviedo,  VII.  lUS-134,  and  MSS.  Dept.  of  State. 


646  NATIONAL   JURISDICTION :    TERRITORIAL   LIMITS.  [§  131. 

By  a  cx)ntract  entered  into  in  London  on  July  11,  1901,  and 
approved  by  the  Bolivian  Congress  on  December  20, 
The  Acre  question.  1901,  the  Bolivian  (iovernment  undertook  to  grant 
to  an  Anglo-American  syndicate,  which  was  incor- 
porated under  the  title  of  ''  The  Bolivian  Syndicate  of  New  York 
City,"'  a  concession  of  important  rights,  powers,  and  privileges,  in- 
cluding powers  of  administration  and  government,  in  the  whole 
of  the  territory  of  Acre,  concerning  the  title  to  which  a  contro- 
versey  was  then  pejiding  with  Brazil.  In  consequence  the  Brazil- 
ian Government,  on  August  8,  1902,  suspended  the  free  navigation 
of  the  Amazon  so  far  as  concerned  the  importation  and  exporta- 
tion of  merchandise  to  and  from  Bolivia.  Against  this  the  Govern- 
ments of  France,  Germany,  Great  Britain,  Switzerland,  and  the 
United  States  remonstrated  as  a  measure  injurious  to  their  com- 
merce with  Bolivia.  On  J'ebruary  20,  1903,  the  freedom  of  com- 
mercial transit  in  respect  of  Bolivia  was  restored,  but  the  impor- 
tation of  war  material  into  that  country  through  the  Brazilian  rivers 
was  prohibited  till  further  notice.  The  position  of  Brazil  was  clearly 
set  forth  by  Baron  Rio-Branco,  who  had  become  minister  of  foreign 
relations  in  December,  1902,  in  a  note  to  Mr.  Seeger.  United  States 
consul-general  in  charge  of  the  legation,  of  February  20,  1903,  as 
follows : 

'•  It  was  in  1806  that  the  Brazilian  Government  opened  the  Ama- 
zon to  the  merchant  ships  of  all  friendly  nations ;  but  of  the  affluents 
of  that  river  which  have  their  source  in  Bolivian  territory  or  pass 
through  it  the  only  one  to  which  it  extended  this  liberty,  and  in  fact 
the  only  one  in  Brazil  which  can  serve  Bolivian  foreign  commerce, 
Avas  the  Madeira,  from  its  confluence  to  the  port  of  Santo  Antonio. 
The  Puri'is,  and  therefore  its  tributary,  the  Aquiry,  or  Acre,  never 
were  open  to  international  navigation.  Brazil  has  ahvays  maintained 
that  when  a  river  })asses  through  the  territory  of  two  or  more  states 
the  freedom  of  navigation  or  ,)f  transit  through  the  country  of  the 
main  river  dei)en(ls  on  a  i)ri()r  agreement  thereto  with  the  country  of 
the  tributary  river,  an  agreement  which  in  its  nature  implies  reci- 
procity. 

"  There  has  not  l)een  and  there  is  not  in  force  any  treaty  of  com- 
merce and  navigation  between  Brazil  and  Bolivia,  and  free  transit  by 
Brazilian  rivei-s  for  Bolivian  foreign  commerce  was  only  a  matter  of 
tolerance  on  the  i)art  of  Brazil.  But  since  the  Bolivian  Gov'ernment 
lias  thought  to  be  able  to  transfer  rights  of  a  quasi-sovereign  nature 
to  a  syncbcate  of  foreigners  of  different  nationalities,  Americans  and 
Eiir()l)eans.  a  syndicate  without  international  capacity,  and  which, 
by  the  way  it  is  constituted  and  by  the  means  it  undertook  to  employ 
in  Kiii-opc,  cloarly  showed  that  it  was  conspiring  against  the  so-called 
Monroe  do'-trine.  and  inasunich  as  the  same  Government  has  besides 


§  131.]  NAVIGATION    OP    THE    AMAZON.  647 

this  conferred  upon  that  syndicate  the  power  of  disposing  at  will  of 
the  navigation  of  the  river  Acre  and  its  affluents,  Brazil  concluded  it 
was  her  duty  to  make  reprisals,  and  for  that  reason,  in  the  absence 
of  conventional  law  between  the  two  parties,  suspended  the  tolerance 
which  has  existed  for  some  years. 

"  The  situation  which  obligated  the  adoption  of  that  expedient  has 
now  changed,  and,  therefore,  since  the  Federal  Government  is  de- 
sirous of  attending  as  promptly  as  possible  to  the  interests  of  com- 
merce, it  has  by  a  decision  of  this  date  reestablished  free  transit  on 
the  Amazon  for  merchandise  between  Bolivia  and  the  foreign  coun- 
tries; it  has  continued,  however,  to  prohibit  the  importation  to  that 
country  of  war  material  by  Brazilian  rivers." 

The  syndicate  was  induced,  by  the  payment  by  Brazil  of  a  sum  of 
money,  to  renounce  all  its  rights  and  claims  under  the  concession,  and 
a  modus  rit'endi  was  entered  into  between  Brazil  and  Bolivia,  pend- 
ing the  conclusion  of  a  definitive  treaty  of  settlement,  which  was 
signed  at  Petropolis,  November  17,  1903.  By  this  treaty  all  Bolivia's 
rights  in  the  Acre  territory  were  acquired  by  Brazil,  and  the  hitter's 
relations  then  became  acute  with  Peru,  the  Government  of  which 
country  also  laid  claims  to  the  territory.  Collisions  took  place  not 
only  between  the  Peruvian  troojjs  and  the  inhabitants  of  the  terri- 
tory, but  also  between  the  Peruvian  and  Brazilian  forces:  and  in 
May,  1904,  the  Brazilian  Government  prohibited  the  transit  of  arms 
and  munitions  of  war  to  Peru  by  way  of  the  Amazon.  By  the  treaty 
of  commerce  and  navigation  between  Brazil  and  Peru  of  October  10, 
1891,  certain  rules  and  regulations,  in  addition  to  those  established 
for  all  nations  in  1867,  were  agreed  upon  as  to  the  navigation  of  that 
river.  The  (Toverninent  of  Brazil,  however,  maintained  that  these 
facilities  were  applicable  only  "  to  the  innocent  transit,  and  in  no 
way  to  the  passage  of  means  of  aggression  and  war,  to  be  used  against 
Brazil  and  her  nationals."  In  regard  to  such  passage,  Baron  Rio- 
Branco,  in  a  note  of  May  16,  1904,  declared  that  the  conventional 
right  of  transit  came  into  conflict  "  with  the  natural  and  absolute 
right  which  Brazil  possesses  to  prevent  and  impede,  as  mucli  as  pos- 
sible, future  aggressions,  which  would  disturb  the  peace  still  fur- 
ther. In  resorting  to  this  prohibition,  the  Brazilian  Government 
makes  use  of  the  so-called  right  of  self-preservation,  which  may  be 
prudently  resorted  to  before  the  employment  of  reprisals."  In  ac- 
cordance with  the  proliibition  thus  ordered,  the  Brazilian  Govern- 
ment caused  to  be  removed  from  a  steamer  at  Manaos  certain  cases 
of  arms  and  amnumition  shipped  from  Europe  to  Ljuitos,  but  in- 
formed the  l*eruvian  minister  at  Rio  de  Janeiro  that  the  articles 
might  be  forwarded  to  their  destination  by  some  other  route.  The 
Peruvian  ininistei"  protested  both  against  the  general  prohibition 
and  also  against  the  interruption  of  the  transit  of  the  particular 


648  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  131. 

cargo,  declaring  that  the  latter  was  intended  for  commercial  and 
not  for  military  purposes.  On  July  12.  15)04,  however,  a  protocol 
was  signed  l)v  Baron  Rio-Branco.  on  the  part  of  Brazil,  and  by 
Sefior  Velarde.  Peruvian  minister  at  Rio  de  Janeiro,  on  the  part  of 
his  (Tovernment.  by  which  a  )iio<lus  vicendi  was  established  with  a 
view  to  the  prevention  of  conflicts  in  the  upper  Jurua  and  upper 
iMinis  pending  the  effort  of  the  two  Governments  to  reach  a  final 
settlement  by  negotiation,  or,  in  case  such  negotiation  should  fail, 
by  other  amicable  methods.  As  the  result  of  this  amicable  arrange- 
ment, the  prohibition  of  the  transit  of  arms  to  Peru  by  way  of  the 
Amazon  wtis  revoked. 

It  should  be  observed  that  the  treaty  of  Petropolis  of  November 
J 7,  1903.  between  Brazil  and  Bolivia,  pledges  perpetually  "the  most 
ample  freedom  of  transit  and  river  navigation  to  both  countries," 
and  secures  to  each  country  the  right,  in  connection  with  such  transit 
and  navigation,  to  keep  customs  agents  at  certain  ports  of  the  other. 

See  For.  Rel.  190:).  3<'.-4.'^ :  Brazil  and  Bolivia.  Boundary  Settlement.  Treaty 
for  the  Exchange  of  Territories  and  other  Compensations,  signed  at 
I*etr()i)olis  November  17.  1!M),3,  together  with  the  Ke])ort  of  Baron 
Kio-Branco.  Minister  for  Foreign  Relations  of  Brazil ;  Brazil  and 
Peru,  Boundary  Question,  by  .John  Bassett  Moore:  New  York.  lt>04 ; 
Col.  W.  V.  Church,  in  The  Geographical  .Journal,  May.  1904.  p.  till*. 

The  Brazilian  decrees  of  ISGG-GT  said  nothing  as  to  men-of-war. 
In  1878,  on  the  request  of  the  American  legation  at 

Navigation     by  j^j^^^    ix'rniission    was  granted    for   a   United    States 
men-of-war.  *  ,  ^ 

man-of-war   to   a.scend    the   Amazon    as   far   as   the 

mouth  of  the  Madeira.  In  1882  the  Brazilian  Government  stated, 
in  response  to  an  in(iuirv  of  the  British  legation,  that  the  ships 
of  war  of  friendly  powers  might  freely  enter  the  maritime  ports 
of  the  count i-y,  but  that  their  right  to  enter  river  ports  depended,  in 
the  al)sence  of  a  convention  to  the  contrary,  upon  a  si)ecial  concession 
m  each  cas<'.  In  18i)S)  ])ermission  was  granted  by  the  Federal  Gov- 
ernment of  Brazil  for  the  V.  S.  S.  Wihnington  to  ascend  the  Amazon 
on  her  way  to  Icjuitos.  in  I'eiMi.  but  in  a  discussion  which  subse- 
quently arose  as  to  the  formalities  necessary  to  be  ob.served  the  Gov- 
ernment stated  that  according  to  the  rule  in  Brazil  the  commander 
of  a  foreign  nuin-of-war  before  ascending  the  river  nutst  obtain 
a  formal  permission  from  the  governor  of  Para  on  a  written  request 
made  by  the  |)roi)er  consul  there."  "  During  the  past  summer  two 
national  ships  of  the  United  States  have  visited  Brazilian  ports  on  a 
friendly  mission  and  been  cordially  received.  The  voyage  of  the 
W iliiinK/fini  Up  the  Amazon  River  gave  rise  to  a  passing  misun'der- 
>tan(ling.  owing  to  confusion  in  obtaining  permission  to  visit  tJie 

"For   Ud.  1,S99.  ll.->,  117,  US.  119.  llil.  VIX     See  also  For.  Rel.  19(H),  Gr>. 


§  131.]  NAVIGATION    OF    THE    ORINOCO.  649 

interior  and  make  surveys  in  the  general  interest  of  navigation,  but 
the  incident  found  a  ready  adjustment  in  harmony  with  the  close 
relations  of  amity  which  this  Government  has  always  sedulously 
sought  to  cultivate  with  the  commonwealths  of  the  Western 
Continent." " 

The  Government  of  Venezuela,  by  a  decree  of  July  1,  1893.  to  take 
etfect  from  December  31,  1893,  closed  the  Macareo 
and  Pedernales  channels  of  the  Orinoco  to  vessels  in 
foreign  trade,  leaving  open  the  Boca  Grande.  By  a  decree  of  June  6, 
1894,  a  violation  of  the  regulations  established  by  the  previous  decree 
was  made  punishable  with  a  fine  of  5,000  bolivars,  while  a  recurrence 
of  it  subjected  the  vessel  to  severe  penalties.  The  validity  of  the 
decree  of  July  1,  1893.  was  sustained  by  the  high  federal  court,  which, 
in  its  decision,  declared — 

1.  That,  according  to  universally  admitted  principles,  every 
sovereign  nation,  in  the  exercise  of  dominion  over  the  national  terri- 
tory and  all  persons  therein,  "  may  permit  or  prohibit  foreigners  to 
come  into  the  country,  and  in  the  same  manner  may  open  or  close  its 
ports  or  rivers  to  foreign  commerce,  neither  the  other  nations  nor 
individual  foreigners  having  any  right  to  claim  the  opening  or  closure 
of  such  rivers  and  ports  under  the  plea  of  injury  to  their  interests." 

2.  That  in  regard  to  "  interior  seas  and  rivers "  this  w  as  the 
doctrine  generally  admitted,  and  that  only  "  in  the  cases  determined 
l)y  the  law  of  nations  might  it  be  exceptionally  claimed  that  certain 
rivers  and  seas  should  be  opened  either  to  the  commerce  of  the  border- 
ing states  or  to  the  general  trade  of  all  countries." 

3.  That  the  decree  in  question,  which  ''  prohibited  to  foreign  com- 
merce the  traffic  or  navigation  of  the  channels  Macareo  and  Peder- 
nales. reserving  l)oth  for  the  coasting  trade,  assigned  the  Boca  Grande 
of  the  Orinoco  to  foreign  navigation  and  commerce,  and  prohibited 
absolutely,  without  distinction  of  persons  and  nationalities,  the  transit 
through  the  remaining  outlets  and  channels  of  the  river,"  was  not 
equivalent  to  the  closure  of  ports  open  to  exterior  commerce;  nor  did 
it  "  impede  the  navigation  of  the  Orinoco,  but  only  establishes  certain 
regulations  for  doing  so.  it  being  of  no  concern  to  the  nation  what 
must  l)e  the  shape  or  build  of  the  vessels  or  their  sailing  conditions 
for  the  pur])()se  of  such  traffic,  these  points  concerning  only  those  who 
intend  trading  with  the  country  through  the  river  channel 
mentioned." 

4.  That,  although  the  lilx^ral  spirit  of  comity  endeavored  to  "  ex- 
tend and  apply  also  to  rivers  the  principle  of  a  free  sea.  it  is  likewise 
true  that  in  i-egard  to  inland  waters,  lakes,  etc.,  the  shores  of  which 
l)elong  exclusively  to  one  nation,  no  other  nation  may  claim  the  right 


o  President  Mt-Kinley,  annual  message,  Dec.  5,  1899. 


050  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS,  [§  131. 

TO  naviorate  tliese  waters,  and  in  proof  thereof  the  liberty  of  navigat- 
iii<2f  them  is  always  the  consequence  of  agreements  or  treaties  between 
tlie  nations,  made  in  view  of  the  reciprocal  international  interests 
and  the  nnitual  conveniences  of  the  countries  in  reference  to  their 
prosperity  and  civilization." 

5.  That  the  decree  therefore  did  "  not  violate  in  any  way  the  prin- 
ciples and  practice  of  the  law  of  nations,  but  on  the  contrary  complies 
with  them  and  recognizes  them  in  prohibiting  to  foreigners  the  navi- 
gation in  certain  parts  of  the  Orinoco,  because  it  specifies  the  outlets 
and  channels  on  which  traffic  is  not  allowed  them,  and  opens  the 
Boca  Grande  as  the  only  channel  they  may  navigate,  whilst  the 
canos  Macareo  and  Pedernales  are  reserved  for  the  coasting  trade.'' 

The  minister  of  the  United  States.  October  25,  1894,  was  instructed 
"■  to  urge  upon  the  Venezuelan  Government  that  as  an  act  of  friendli- 
ness to  the  I'nited  States,  as  well  as  in  the  interest  of  the  commerce  of 
the  two  countries,  it  reopen  to  ships  of  the  United  States  the  branches 
of  the  Orinoco  now  closed  to  them." 

Senor  Rojas,  Venezuelan  minister  of  foreign  affairs,  stated,  Decem- 
ber 1.  1804.  that  the  decree  of  July  1,  1893,  which  was  designed  to 
prevent  contraband  trade,  had  been  justified  by  results,  and  could  not 
l)e  annulled :  but  that  the  Government  proposed  at  the  proper  time  to 
estaljli-^h  near  the  Gulf  of  Paria  a  port  for  the  transshipment  of 
freight  destined  to  places  on  the  Orinoco,  but  arriving  on  vessels 
unable  to  enter  the  Boca  Grande. 

For  the  decree  of  .July  1.  1S!K?.  see  Mr.  Partridge,  min.  to  Venezuela,  to 
Mr.  Gresham.  Sec.  of  State,  July  10.  18!«.  For.  Rel.  189.3,  720;  and 
for  the  decree  of  June  G.  1894.  For.  Rel.  1894.  794.  For  the  decision 
of  the  high  federal  court,  see  For.  Rel.  1894.  79,^..  798-799. 

As  to  the  case  of  John  II.  Dialogue  &  Son.  and  their  steamer  Delta,  see 
For.  Rel.  189.3.  729.  TAr,.  7.37,  740. 

P"or  the  re(|uest  for  the  opening  of  the  closed  mouths,  as  an  act  of  friendli- 
ness, see  Mr.  Gresham.  Sec.  of  State,  to  Mr.  Ilaselton,  min.  to  Vene- 
zuela. No.  12.  Oct.  2."..  1894,  For.  Rel.  1894.  8(K». 

As  to  the  rei>ly  of  Senor  Rojas.  see  Mr.  I'hl.  .Vcting  Sec.  of  State,  to  Mr. 
('oonil)s.  Fd).  2."..  189."..  2(i(»  MS.  Dom.  Let.  (•►.".8. 

The  text  of  a  decree  of  the  Venezuelan  Government  of  May  14.  1809.  and 
of  a  regulatory  decree  <if  July  1.  1809,  o])ening  the  Orinoco  and  its 
artluents  to  merchant  vessels  inuler  foreign  flags,  may  he  found  in 
Moore.  Int.  .Vrhitrations.  II.  lOiM!.  In  August  187.3.  however,  an 
e.xclusive  right  to  navig.ite  the  same  streams  was  granted  to  (ieneral 
IVicz.  of  Caracas.  (.Moore.  Int.  Arltitrations.  II.  1701;  S.  Ex.  Doc. 
1.39.  .'»(•  Cong.  1  sess.  :'.2. ) 

T^y  an  executive  decree  of  Sej)teml)(M-  11.  1900.  the  Venezuelan  Gov- 
enuneut  suspended  the  use  of  the  river  Zulia,  an  affluent  of  the 
Orinoco,  for  commei-cial  purposes.  The  Colombian  legation  at  Cara- 
CU-.  by  notes  of  Sei)tember  28  and  Octolx-r  -i."),  1900.  protested  against 


§  131.]  NAVIGATION    OF    THE    ORINOCO.  65l 

this  decree  as  inflicting  a  grave  injury  on  the  provinces  of  the  Depart- 
ment of  Santandar,  wliich  had  enjoyed,  without  interruption,  the  use 
of  the  river  as  a  means  of  communication  with  the  sea.  The  Venezue- 
hin  Government,  by  a  note  of  November  3,  1900,  defended  the  decree 
on  the  ground  that  it  was  necessary  for  preventing  the  consunnnation 
of  projected  revohitionary  invasions  and  the  supply  of  arms  and  other 
contraband  articles  to  persons  who  were  plotting  against  the  peace  of 
Venezuela.  The  right  of  Venezuela  to  close  the  navigation  of  the 
river  was  denied  by  the  Colombian  Government  on  general  grounds  as 
well  as  on  grounds  of  immemorial  right  and  treaty  stipulations. 
By  an  executive  decree  of  March  4,  1901,  the  Venezeulan  Government 
stated  that  the  commercial  navigation  of  the  river  by  bongos  and 
canoes  was  allowed.  The  Colombian  minister  at  Caracas  stated  in  a 
dispatch  to  his  Government,  March  10.  1901,  that  merchants  residing 
in  ]Maracaibo,  who  were  interested  in  the  transit  of  the  Zulia,  had 
informed  him  that  this  permission  was  sufficient  for  the  time  being, 
since  there  was  little  water  in  the  rivers  and  steamers  could  not 
navigate  it. 

Uribe,  Anales  Diploinaticos  y  Consulares  de  Colombia  (1901).  II.  208-289. 

"A  large  part  of  Colombian  territory  being  watered  by  navigable 
branches  of  the  river  Orinoco,  has  enabled  the  Republic  to  make  use 
of  this  river  as  far  as  the  open  sea  by  any  of  its  outlets,  with  no  other 
obligations  than  those  of  observing  the  police  laws  that  Venezuela 
might  make  for  internal  security  and  for  the  protection  of  her 
revenues. 

'•  This  right  of  Colombia  has  been  confirmed  still  more  now  that  the 
frontier  limits  liave  been  decided,  and  it  is  admitted  that  the  territory 
of  our  country  extends  as  far  as  the  left  bank  of  the  Orinoco.  The 
river  there  having  become  international,  its  navigation  is  free  to  both 
countries." 

lieport  of  the  Coloinl>ian  minister  of  foreign  affairs,  1S94.  For.  Rel.  1894, 
2(tO. 

With  reference  to  an  attack  made  on  the  American  steamer  Ant'io- 
r/nia  on  the  Magdalena  River,  March  9,  1864,  Senor  Dr.  Antonio  del 
Xeal.  Colombian  minister  of  foreign  affairs,  in  a  note  to  Mr.  Burton, 
United  States  minister,  of  February  IG,  18()r),  said:  •*  Ordei's  have 
also  been  renewed  to  the  States  of  Bolivar,  Magdalena.  Antioquia, 
and  Tolima,  ivcjuiring  of  their  respective  authorities  the  strictest 
compliance  with  the  law  of  May  24,  185().  and  the  amendment  thereto 
of  May  ^n,  18()4,  forbidding  their  interference  in  the  navigation  of 
the  MagdahMia  River,  in  consequence  of  all  that  relates  to  the  naviga- 
tion of  the  rivers  of  the  Republic  which  touch  the  territory  of  two 


052  NATIONAL    JURISDICTION:    TERRITORIAL   LIMITS.  [§131. 

or  more  States,  or  of  an  adjoining  nation,  being  under  the  exclusive 
control  of  the  (ieneral  Government."" 

The  law  of  May  *25,  18()4,''  refers  to  clause  0,  article  17,  of  the  con- 
stitution of  the  i'nited  States  of  Colombia  of  May  8,  1803,  which 
declares  the  exclusive  competency  of  the  (reneral  Government  to  ex- 
tend to  ••  the  regulation  of  such  interoceanic  communications  as  exist 
or  nuiy  be  ojxMied  in  the  territory  of  the  I'nion.  and  the  navigation  of 
the  rivers  wliich  water  the  territory  of  more  than  one  State  or  flow 
on  to  that  of  a  neighboring  nation." 

By  the  general  act  of  Berlin  of  Feb.  26,  1885,  Art.  II.,  all  flags 

African   Bivers-    li«>^'^    ^^'^^^    access    to    the    Congo    and    its    affluents, 

Congo  and  Ni-    including  the  lakes,  as  well   as  to  any  canals  that 

ger.  may   be   constructed   to   unite   the   water   courses   or 

lakes  within  the  territories  of  the  state. 

The  same  treaty  guarantees  the  free  navigation  of  the  Niger  aud- 
its branches. 

Independent  State  of  the  Congro.  S.  Ex.  Doc.  UH\.  40  Con.!?..  1  sess.  298, 
.S(H).  ;i()8:  Schuyler.  Am.  Dip.  IH'A. 

By  a  decree  of  the  sovereign  of  the  Indei)endent  State  of  the  Congo  of 
April  :>0.  1887.  every  private  vessel  navigating  the  river  beyond  the 
falls  of  Leopoldville  was  retiuirtnl  to  hoist  at  the  stern  the  flag  of 
that  state,  although  she  was  i)erniitted  also  to  hoist  the  flag  of  her 
own  country,  if  she  iK)s.sessed  ship's  papers  establishing  her  foreign 
nationality.  The  United  States  ob.ie«-ted  to  this  retiuirenient.  but  it 
was  defended  by  the  Congo  State.  In  the  correspondence  it  was 
agreed  that  the  Congo  Kiver  was  open  to  the  flags  of  all  governments, 
whether  such  governments  were  i)arties  to  the  general  act  of  Kerlin 
or  not.  (For.  Kel.  1888.  I.  27  et  se(|.  See.  also.  Mr.  Bayard.  Sec.  of 
State,  to  Mr.  Tree.  min.  to  Belgium.  March  !).  1888,  MS.  Inst.  Belg. 
•II.  481.) 

In   18S8  the  Persian  Government  announced  that  it  had  decided. 
Persian   river—    with  a  view  to  extend  the  conunerce  of  the  Empire 
Karun.  aiid     promote    the    agriculture    of    Kurdistan    and 

Ahwaz,  to  permit  merchant  steamers  of  all  nations  to  exercise  the 
j)rivilege.  which  had  previously  been  confined  to  sailing  vessels,  of 
transjjorting  goods  in  tiie  river  Karun  from  Mohammera  to  the  dyke 
at  Ahwaz.  on  condition  (  1)  that  they  should  not  pass  above  that 
dyke,  the  navigation  of  the  river  above  that  i)oint  being  reserved 
exclusively  to  sailing  vessels  and  steamers  of  the  Persian  Government 
and  of  its  subjects:  (-2)  that  they  should  pay  the  passage  dues  fixed 
by   the    Persian    (Government    at    Mohammera;    and    (3)     that    they 

"  See  disi)iitcli   from   Mr.    Burton,   min.   to   Colombia,   to   Mr.   Seward.   Se<-.   of 
State.  No.  174.  May  14,  18tM».  MSS.  De|»t.  of  State. 
'■t;i  P.rit.  *:  F(.r.  State  Tap.  140. 
<:,:',  Id.  21HJ. 


§  132.]  DIVERSION    OF    WATERS.  653 

should  not  carry  merchandise  prohibited  by  the  Persian  Government 
nor  remain  longfer  in  the  river  than  was  necessary  for  the  loading  and 
unloading  of  merchandise. 

Mr.  I'ratt.  uiin.  to  Persia,  to  Mr.  Bayard.  Sec.  of  State.  No.  .312,  Nov.  5, 
1888.  enclosing  translation  of  a  conuuunieation  of  the  Persian  minis- 
ter for  foreign  affairs  of  24  Sefar  130(>,  MSS.  Dept.  of  State. 

(5)  DIVERSION   OF   WATERS. 

§  132. 

June  12,  1880,  Mr.  Evarts  enclosed  to  the  United  States  legation  in 
Case  of  the   Bio    Mexico  a  copy  of  a  letter  from  the  governor  of  Texas 
Grande.  and  of  its  various  enclosures,  invoking  the  interposi- 

tion of  the  United  States  in  a  matter  stated  to  be  of  Wtal  importance 
to  the  citizens  of  Texas  living  on  the  eastern  shore  of  the  Kio  Grande. 
The  substance  of  the  complaint  was  that  Mexicans  engaged  in  agri- 
cultural pursuits  on  the  Mexican  shore  of  the  river  were  in  the  habit 
of  diverting  the  water  during  the  dry  season  into  their  ditches, 
thereby  preventing  the  citizens  of  Texas  from  getting  sufficient  Avater 
to  irrigate  their  crops.  "  This,"  said  Mr.  Evarts,  ''  if  true,  would 
be  in  direct  opposition  to  the  recognized  rights  of  riparian  owners, 
and,  if  persisted  in,  must  result  in  disaster  and  ruin  to  our  farming 
population  on  the  line  of  the  Rio  Grande,  and  might  eventually,  if 
not  amicably  adjusted  through  the  medium  of  diplomatic  interven- 
tion, be  productive  of  constant  strife  and  breaches  of  the  peace  be- 
tween the  inhabitants  of  either  shore.'*  The  subject  was  also  brought 
to  the  attention  of  the  Mexican  minister  at  "Washington.  The  receipt 
of  Mr.  P^varts's  conununication  was  duly  acknowledged,  but  no  fur- 
ther correspondence  appears  to  have  taken  place. 

For.  Rel.  188<»,  7.")2-755,  784 :  Mr.  Olney,  Sec.  of  State,  to  At.-Gen.,  Dec.  5, 
180.J,  20(j  MS.  Doni.  Let.  310. 

The  statement  in  the  letter  to  the  Attorney-General  of  Dec.  5,  1895,  here 
cited,  that  no  further  correspondence  appears  to  have  taken  place, 
may  ho  modified  to  this  extent:  After  more  than  four  years'  delay, 
the  Mexican  legation  presented  a  re[dy  to  the  effect  that  the  scarcity 
of  water  in  1S80  was  due,  not  to  diversion,  hut  to  the  dry  season: 
that  the  Mexicans  in  fact  suffered  more  than  the  Texans ;  that  the 
scarcity  was  aggravated  hy  the  waste  of  water  on  the  American  side, 
in  Colorado  and  New  Mexico :  and  that,  while  there  was  a  dam  at 
I'aso  del  Norte,  Mexico,  it  had  heen  in  existence  more  than  .3(X)  years, 
l)eing  as  old  as  the  town  itself,  and  no  additions  had  lately  heen  made 
to  it.  (Mr.  Romero.  Mex.  nun.,  to  Mr.  Frelinghuysen.  See.  of  State, 
Aug.  27,  1884.  34  MS.  Notes  from  Mex.  Leg.) 

By  a  note  of  October  21,  1895,  the  Mexican  minister  complained 
tliat,  in  consequence  of  the  digging  of  irrigation  trenches  in  parts  of 
Colorado  and  New  Mexico  through  which  the  Upper  Rio  Grande  and 


«)54  NATIONAL   JURISDICTION  :    TERRITORIAL   LIMITS.  [§132. 

its  iiHliuMits  flow,  the  Avatcr  in  the  river  had  been  so  greatly  dimin- 
ished as  to  create  a  scarcity  in  the  lower  part  of  the  stream,  to  the 
<rreat  (hiniage  and  hardship  of  numerous  inhabitants  of  Mexico.  This 
was  rei)resented  as  a  violation  both  of  the  principles  of  international 
law  and  of  Article  VII.  of  the  treaty  of  Guadalupe  Hidalgo  of  Feb- 
iMiary  '2.  1848.     It  was  advised — 

1.  That  the  rules  of  international  law  imposed  upon  the  United 
States  no  duty  to  deny  to  its  inhabitants  the  use  of  the  water  of  that 
j)ai't  of  the  Kio  (Jrande  lying  wholly  within  the  United  States, 
although  such  use  resulted  in  reducing  the  volume  of  water  in  the 
river  below  the  point  where  it  ceased  to  be  entirely  within  the  United 
States,  the  supposition  of  the  existence  of  such  a  duty  IxMng  incon- 
sistent with  the  sovereign  jurisdiction  of  the  United  States  over  the 
national  domain. 

-2.  That  Article  VII.  of  the  treaty  of  (iuadalupe  Hidalgo,  although 
it  prohibited  "  any  work  that  may  impede  or  interrupt,  in  whole  or 
in  part."  the  exercise  of  the  right  of  navigation,  was  limited  in  terms 
to  •■  the  part  of  the  Kio  Bravo  del  Norte  lying  below  the  southern 
lH)undarv  of  New  Mexico."  while  Article  IV.  of  the  treaty  of  Decem- 
ber 30.  185;^,  continued  in  force  the  provisions  of  Article  VII.  "only 
so  far  as  regards  Rio  Bravo  del  Norte  below  the  initial  of  said  bound- 
ary ])rovided  in  the  first  article  of  this  treaty." 

Ilannoii.  At.-(;en..  Dec.  12.  lS!>r>.  21  Op.  274.  The  Attorney-General,  in 
conclndinjr  his  opinion,  said:  "The  case  presented  is  a  novel  one. 
Whether  the  circmnstances  make  it  possihle  or  proper  to  take  any 
action  from  considerations  of  comity  is  a  question  which  does  not 
pertain  to  this  Department;  hut  that  (piestion  should  he  decided  as 
one  of  ]>oIi<y  only.  l)ecause.  in  my  opinion,  the  rules,  principles,  and 
pre<ed<'nts  of  intei'national  law  imix)se  no  liahility  or  obligation  uiMjn 
the  Fnited  States."      (21  Op.  2S:i.) 

August  4.  181)().  the  Mexican  Minister  at  AVashington  presented  to 
the  I)ej)artment  of  State  a  petition  from  Mexican  citizens  in  and 
about  Baso  del  Norte.  Mexico,  protesting  against  the  innnoderate  use 
of  waters  of  the  Kio  (Jrande  and  its  tributaries  by  residents  of  New 
Mexico  and  Uoloi'ado.  The  Mexican  minister  called  attention  to 
Article  VII.  of  the  treaty  of  February  2.  1848;  to  the  last  clause  of 
Article  I.  of  the  treaty  of  December  30.  1853:  to  Article  III.  of  the 
convention  of  November  12.  1884,  and  to  Article  V.  of  the  convention 
of  March  1.  1889;  and,  on  the  strength  of  these  stipulations,  asked 
the  United  States  (rovernment  to  prevent  the  erection  and  operation 
by  a  c(»m])any  known  to  the  complainants  as  the  "  Rio  Grande  Irriga- 
tion Gomi^any  (Limited)."  at  Elephant  Butte,  in  New  Mexico,  about 
125  miles  above  Paso  del  Norte,  of  a  dam  designed  to  store  all  the 
surplus  waters  of  the  river  and  turn  it  into  imgation  ditches  and 
canals. 


§  132.]  DIVERSION    OF    WATERS.  655 

It  appeared  on  inquiry  that  the  company  had  filed  an  application  in 
the  Interior  Department  of  the  United  States  for  a  right  of  way  for 
a  dam  and  reservoir  at  Elephant  Butte,  and  that  this  application 
had  been  api)roved  by  the  Secretary  of  the  Interior  mider  sections 
18  to  21  of  the  act  of 'March  3,  1891  (26  Stat.  1095,  1101  and  1102). 
By  section  10.  however,  of  the  act  of  September  19,  1890  (26  Stat. 
•126— 15J:),  the  "creation  of  any  obstruction,  not  affirmatively  author- 
ized by  law,  to  the  navigable  capacity  of  any  Avaters  in  respect  of 
which  the  United  States  has  jurisdiction,"  is  prohibited;  the  ''con- 
tinuance of  any  such  obstruction,  except  bridges,  piers,  docks, 
wharves,  and  similar  structures  erected  for  business  purposes,"  is 
made  an  offense,  each  week*'s  continuance  being  deemed  a  separate 
offense;  and  every  person  or  corporation  guilty  of  creating  or  con- 
tinuing any  such  unlawful  obstruction  is  punishable  by  a  fine  not 
exceeding  $5,000,  or  by  imprisonment  (in  the  case  of  a  natural  per- 
son) not  exceeding  one  year,  or  by  both,  in  the  discretion  of  the  court. 
Tlie  creating  or  continuing  of  the  obstruction  may  besides  be  pre- 
vented, and  the  obstruction  itself  may  be  caused  to  be  removed,  by 
an  inj miction  granted  in  proceedings  instituted  under  the  direction 
of  the  Attorney-General  of  the  United  States.  Moreover,  by  section  3 
of  the  act  of  July  13.  1892  (27  Stat.  88-110),  (amending  section  T  of 
the  act  of  September  19,  1890),  it  is  declared  to  be  unlawful  '*  to  build 
any  .  .  .  dam  .  .  .  or  structure  of  any  kind  ...  in  any  navigable 
waters  of  the  United  States  ...  in  such  manner  as  shall  obstruct  or 
im{)air  navigation,  commerce,  or  anchorage  of  said  waters,"  without 
permission  of  the  Secretary  of  War. 

No  permission  having  been  obtained  for  the  erection  of  the  dam 
across  the  Rio  Grande  at  Elephant  Butte,  the  question  was  suggested 
whether  the  river  in  the  parts  which  Avould  be  affected  was  not  navi- 
gable water  of  the  United  States  within  the  meaning  of  the  statutes 
above  quoted,  so  as  to  make  the  sanction  of  the  Secretary  of  War  a 
re(piisite  to  the  lawful  erection  of  the  dam.  There  was  information 
tending  to  show  that  the  Rio  Grande  was  navigable  for  commercial 
purposes  between  the  I '^nited  States  and  Mexico,  and  possibly  between 
the  States  of  Colorado  and  the  Territory  of  New  Mexico;  that,  while 
it  possibly  would  not  float  water  craft  of  great  size,  it  liad  been  used 
in  the  timber  commerce  of  the  country;  and  that  it  was  in  its  natural 
state  capable  of  regular  periodical,  if  not  perennial,  use  as  a  water- 
way for  commercial  traffic  between  two  States  of  the  Union  or  be- 
tween the  United  States  and  a  foreign  country.  This,  if  true,  would 
make  it  a  navigable  stream  of  the  United  States  within  the  meaning 
of  the  laws  for  the  protection  of  such  waters  and  would  render  proper 
the  adoi)tion  of  the  most  effective  measures  to  keep  it  so.  This 
question  Avas  not  coA-ered  by  the  Attorney-Generars  opinion  of 
December  12,  1895,  supra,  Avhich  merely  held  that  the  stipulations 


(t5B  national  jurisdiction:  territorial  limits.       [§132. 

of  tlie  treaties  concerning  the  navigation  of  the  river  were  inappli- 
cal)le  above  the  point  where  it  ceased  to  be  the  connnon  boundary,  and 
did  not  consider  whether  it  Avas  navigable  water  above  that  point  in 
the  sense  of  the  Federal  statutes. 

Mr.  Oliioy.  Sec.  of  State,  to  Sec.  of  War,  Jan.  18,  1897,  215  MS.  Doni.  Let. 
2()J).  enclosing  a  note  from  the  Mexican  minister  of  Aug.  4,  189<),  and 
a  letter  from  the  Secretary  of  the  Interior  of  Dec.  19.  1896. 

See.  also.  Mr.  Olney.  Sec.  of  State,  to  Sec.  of  Interior,  Jan.  11,  1897,  215 
MS.  Doni.  Let.  IGO. 

May  24,  ISDT,  the  Attorney-(ieneral  of  the  United  States  filed  a  bill 
against  the  Rio  (irande  Dam  and  Irrigation  Company  to  restrain  it 
fi-om  constructing  the  dam  al)ove  referred  to,  and  tlie  bill  was  after- 
wards amended  so  as  to  include  the  Rio  Grande  Irrigation  and  Land 
Company  (I^imited),  a  British  corporation.  It  was  alleged  that  the 
latter  company,  which  was  a  lessee  of  the  former,  intended  to  con- 
struct works  to  control  the  entire  flow  of  the  Rio  Grande  at  the  point 
in  question;  that  the  river  received  no  addition  to  its  volume  between 
that  point  and  the  mouth  of  the  Conchos  River.  300  miles  below:  and 
that,  owing  to  the  nature  of  the  soil  and  the  rapidity  of  evaporation, 
little  of  the  impounded  waters  would  after  their  distribution  be  re- 
turned to  the  river.  The  bill  also  averred  that  the  Rio  Grande  had 
been  navigated  by  steamboats  850  miles  from  its  mouth  up  to  Roma, 
Tex. :  that  it  was  susceptible  of  navigation  above  Roma  to  a  point 
lV)0  miles  below  FA  Paso,  Tex. :  and  that  it  had  been  used  between  El 
Paso  and  La  Joya.  100  miles  above  P^lephant  Butte,  for  the  floating 
and  transportation  of  rafts,  logs,  and  poles.  The  bill  finally  alleged 
that  the  impounding  of  the  waters  al)Ove  P^lephant  Butte  would 
seriously  obstruct  the  navigable  capacity  of  the  river  throughout  its 
entire  course  from  that  point  to  its  mouth.  The  answer  of  the  de- 
fendants, after  setting  forth  the  ai)proval  of  their  application  by  the 
Secretary  of  the  Intei'ior,  declared  that  the  entire  flow  of  the  Rio 
Grande  during  the  in-igation  season  at  the  point  where  they  intended 
to  construct  reservoirs  had  long  since  been  diverted  and  used  by  other 
parties,  and  that  their  only  object  was  to  store  and  use  such  waters 
as  iutd  not  been  already  legally  diverted,  their  purpose  being  to  use 
chiefly  the  excess  storm  and  flood  waters,  which  went  to  waste.  The 
answer  also  denied  that  the  river  Avas  susceptible  of  navigation  or 
had  been  navigat<'d  al)()\'e  Roma,  or  had  been  beneficially  used  or  was 
susceptible  of  being  used  for  navigation  in  \ew  Mexico,  or  that  the 
pr()])ose<l  works  would  deplete  the  flow  so  as  seriously  to  obstruct  the 
navigability  of  the  river  at  any  point  below  the  proposed  dam.  The 
coui-t  dismissed  the  bill  on  the  ground  that  the  Rio  Grande  was  not 
navigable  within  the  limits  of  New  Mexico,  and  that  the  United 
States,  therefore,  had  no  jurisdiction  in  the  case. 


§  132,]  DIVERSION    OF    WATERS.  657 

An  appeal  having  been  taken  to  the  Supreme  Court  of  the  United 
States,  that  tribunal,  upon  the  proofs,  concurred  in  the  conclusion 
that  the  Rio  Grande  was  not  navigable  within  the  limits  of  New 
Mexico.  Xor  was  it  necessary,  said  the  court,  to  consider  the  treaty 
stipulations  between  the  United  States  and  Mexico.  The  questions 
arising  under  treaties  or  international  law  might  under  other  circum- 
stances be  interesting  and  important,  l)ut  as  it  appeared  that  the 
United  States  was  under  an  equal  obligation  to  preserve  the  naviga- 
bility of  its  navigable  waters  for  its  own  people,  the  court  would  con- 
fine itself  to  the  coiisideration  of  the  case  in  that  aspect.  By  the  act 
of  September  19,  1890,  it  was.  said  the  court,  obvious  that  Congress 
meant  that  there  should  thereafter  be  no  interference  with  the  naviga- 
bility of  a  stream  without  the  national  assent.  It  was  urged,  how- 
ever, that  the  operation  of  the  act  was  limited  to  obstructions  in  the 
navigable  portion  of  a  navigable  stream,  and  that,  as  the  Rio  Grande 
was  not  navigable  in  New  Mexico,  the  statute  did  not  there  apply  to 
it;  but  the  court  declared  that  the  terms  of  the  act  embraced  not 
merely  obstructions  to  navigation,  but  any  obstruction,  wherever  or 
however  created,  within  the  jurisdiction  of  the  United  States,  which 
tended  "  to  destroy  the  navigable  capacity  of  one  of  the  navigable 
waters  of  the  United  States."  The  decree  of  the  court  below  was 
therefore  reversed,  and  the  case  was  remanded  with  instructions  "  to 
order  an  inquiry  into  the  question  whether  the  intended  acts  of  the 
defendants  in  the  construction  of  a  dam  and  in  appropriating  the 
waters  of  the  Rio  Grande  will  substantially  diminish  the  navigability 
of  that  stream  within  the  limits  of  present  navigability,  and  if  so,  to 
enter  a  decree  restraining  those  acts  to  the  extent  that  they  will  so 
diminish." 

United  States  v.  Rio  Grande  Dam  &  Irrigation  Co.  (1899),  174  U.  S.  690. 

The  commissioners  of  the  New  York  State  reservation  at  Niagara, 
Niagara  Biver  and    in  their  report  for  the  fiscal  year  ending  September 

Great  Lakes.         .30,  1898  ( pp.  12-13 ) ,  say : 

••  The  volume  of  the  river  and  cataract  at  Niagara  is  of  course 
dependent  upon  the  water  supply  of  the  Great  Lakes.  The  Niagara 
River  is  but  the  overflow  of  Lake  Erie,  into  which  flow  the  waters 
of  the  other  lakes.  The  lowering  of  the  level  of  these  lakes  would 
diminish  the  flow  into  Lake  Erie  and  reduce  the  volume  of  the 
Niagara  River.  Any  very  large  withdrawal  or  diversion  of  water 
from  one  or  more  of  the  Great  Lakes  would  scarcely  fail  to  be  notice- 
able in  a  reduced  flow  at  the  cataract. 

•'  The  commissioners  deem  it  advisable  that  the  National  Govern- 
ment be  requested  to  appoint  a  connnission  to  confer  with  a  Canadian 
commission  as  to  the  means  to  be  devised  to  prevent  any  excessive 

H.  Doc.  551 42 


(i58  NATIONAL    JURISDICTION  :    TEfiRITORIAL    LIMITS.  [§  133. 

iliversion  of  the  waters  of  the  Great  Lakes,  and  to  consider  the  whole 
subject  of  the  uses  and  control  of  these  waters,  and  to  report  its  con- 
clusions to  Congress,  with  such  recommendations  as  it  may  desire  to 
submit.*' 

N.  Y.  Assembly  Documents.  122ncl  session,  181)0.  vol.  2.  j)t.  2.  See  report  of 
Mr.  Clark,  of  Wyoniiufj.  C'onunittee  on  For.  Hel..  Feb.  28.  UKK>,  on  a 
joint  resolution  (S.  K.  71)  authorizing  tlie  President  to  invite  Great 
Britain  to  .join  in  creating  an  international  coiiiniissiou  to  examine 
and  rei)ort  on  the  diversion  of  the  waters,  that  form  the  Ixmndaries 
between  the  two  countries.     (S.  Hep.  4«jl.  .")(j  Cong.,  1  sess. ) 

Referring  to  the  damages  sustained  by  certain  American  citizens  in  con- 
sequence of  the  erection  of  a  dam  by  the  Canadian  authorities  at 
the  head  of  the  Beauharnois  Canal,  in  Canada,  a  report  of  the  execu- 
tive council  of  Canada  was  communicated  to  the  complainants,  with 
an  expression  of  the  hoi>e  that  it  would  prove  satisfactory  to  them. 
(.Mr.  Aiipleton,  Assist.  Sec.  of  State,  to  Messrs.  H.  B.  &  T.  S.  Mears, 
March  14,  1860,  52  MS.  Dom.  Let.  41.) 

4.    STRAITS. 
(1)     DIVISIONAL    LINES. 

§  133. 

The  question  of  the  limits  of  territorial  jurisdiction  in  and  over 
straits  or  narrow  passages  leading  from  one  body  of  water  to  another 
is  governed  by  substantially  the  same  principles  as  that  of  the  limits 
of  territorial  jurisdiction  in  and  over  rivers. 

By  the  treaty  of  June  15.  184().  it  was  agreed  (Art.  I.)  that  the 
boundary  between  the  United  States  and  the  British  possessions 
westward  of  the  Rocky  ^lountains  should  follow  the  forty-ninth 
parallel  of  north  latitude  to  the  middle  of  the  channel  separating 
the  continent  from  Vancouvers  Island,  and  thence  i)r()ceed  south- 
erly "  through  the  middle  of  said  channel,  and  of  Fuca's  Straits, 
to  the  Pacific  Ocean:  Proridcch  hoirerer.  That  the  navigation  of 
the  whole  of  said  channel  and  straits,  south  of  the  forty-ninth 
parallel  of  noi-th  latitude,  remains  free  and  open  to  l)oth  parties." 
By  this  stipulation,  as  well  as  by  their  acts  subsequent  to  the  award 
of  the  (iernian  Emjicror  of  October  "21,  1872.  in  the  case  of  the 
San  Juan  water  boundary,  the  contracting  parties  showed  their 
intention  to  treat  the  entire  waters  of  the  Straits  of  Fuca  as  terri- 
torial. "■  The  straits  of  Juan  de  Fuca  are  not  a  great  natural 
thoi-oughfare  or  chaimel  of  navigation  in  an  international  sense;  and 
in  view  of  their  situation  it  is  not  apprehended  that  any  other  nation 
can  make  reasonable  objection  to  the  jurisdiction  of  the  Government 
of  the  I'nited  States  and  of  Cireat  Britain  over  tiieir  entire  area. 
The  breadth  of  the  narrowest  point  is  believed  to  be  about  ten  miles, 
but  is  not  equal  to  the  width  of  the  Delaware  Bay  and  other  bodies 


ii  134.]  NAVIGATION    OF    STRAITS.  659 

of  water  over  which,  on  account  of  their  situation,  the  United  States 
have  felt  authorized  to  assume  jurisdiction." 

Mr.  Wharton.  Acting  Sec.  of  State,  to  Sei-.  of  Treasury,  May  22,  1891,  182 
MS.  Doni.  Let.  79.  citing  Hall.  Int.  Law  (3d  ed.),  140.  See  Hall, 
4th  ed.  163. 

(2)     IS'AVIGATIOX. 

§  134. 

In  a  series  of  resohitions  adopted  by  the  Institut  de  Droit  Inter- 
national, at  its  session  in  Paris  in  1894,  on  the  subject  of  territorial 
waters  the  following  general  principles  with  regard  to  straits  were 
laid  down : 

1.  That  straits  whose  shores  belong  to  different  states  form  part 
of  the  territorial  waters  of  the  bordering  states,  which  exercise 
sovereignty  to  the  middle  line. 

•2.  That  straits  whose  shores  belong  to  one  state  form,  so  far  as 
concerns  approach  to  the  coast,  part  of  the  territorial  waters  of  such 
state,  although  they  may  be  indispensable  as  a  means  of  maritime 
connnunication  Ix^tween  two  or  more  other  states. 

3.  That  straits  which  serve  as  a  passage  from  one  free  sea  to 
another  can  never  be  closed. 

From  the  operation  of  these  rules,  straits  actually  subject  to  con- 
ventions or  special  usages  were  expre,ssly  reserved. 

Institut  de  Droit  International.  Annuaire.  XIII.   (1804-9.j)  330-331. 

From  a  date  not  definitely  ascertained,  the  Danish  Government 
Danish  Sound     levied  tolls  on  vessels  and  cargoes  passing  through 
dues.  the  sound  and  the  two  belts  which  form  a  passage 

from  the  North  Sea  into  the  Baltic.  This  exaction  was  justified  by 
the  Danish  (iovernment  on  the  ground  of  immemorial  usage,  sanc- 
tioned l)y  a  long  succession  of  treaties.  It  was  also  maintained  that 
the  Danish  exercise  of  sovereignty  had  l)een  ber.eficial  to  connnerce, 
in  the  policing  and  lighting  of  the  waters.  The  exclusive  right  of  Den- 
mark was  recognized  as  early  as  13()S  by  the  Hanseatic  Kepul)lics. 
The  Fm]K'ror  Charles  V..  by  a  treaty  concluded  at  Spire,  in  l.")44. 
agreed  that  the  merchants  of  the  Low  Countries  frequenting  the  ])orts 
of  Denmark  shoidd  pay  the  same  duties  as  formerly.  By  a  treaty  with 
Henry  VII.  of  Fngland  in  1490  English  vessels  were  forbidden  to 
pass  the  (ireat  Belt  as  well  as  the  sound,  mdess  in  case  of  unavoidable 
necessity,  in  which  case  they  were  to  pay  the  same  duties  at  Wyborg 
as  if  they  had  passed  the  sound  at  Elsinore.  By  a  treaty  between 
Denmark  and  the  United  Provinces  of  the  Netherlands,  concluded  at 
Christ ianople  in  1045.  the  amount  of  duties  to  l)e  levied  on  the  passage 
of  the  sound  and  belts  was  definitely  ascertained,  and  it  was  stipu- 
lated that  goods  not  specified  in  the  tariff  should  pay  according  to 


(i(>0  NATIONAL    JURISDICTION  I    TERRITORIAL   LIMITS.  [§  134. 

mercantile  usage  aiul  the  ancient  practice.  By  a  further  treaty 
l)et\veen  tiie  two  powers,  conchided  at  Copenhagen  in  1701,  it  was 
stipuhited  that  articles  not  specified  in  the  tariiT  of  1045  should  be 
assessed  1  jx'r  cent  on  their  value  at  the  place  from  which  they  came. 
The  treaties  of  KUf)  and  1701  were  referred  to  in  all  subsequent 
treaties,  as  fixing  the  standard  of  rates  to  be  paid  by  "privileged" 
luitions.  Difl'erent  rates  were  paid  by  nations  not  privileged.  A 
revision  of  duties  was  effected  by  a  convention  between  Denmark  and 
(Jreat  Britain  in  1841." 

By  Article  V.  of  the  treaty  of  connnerce  and  navigation  between 
the  ITnited  States  and  Denmark,  concluded  April  2(),  182(),  it  was 
agreed  that  neither  the  vessels  of  the  United  States  nor  their  cargoes 
should.  Avhen  they  passed  the  sound  or  belts,  pay  higher  or  other 
duties  than  those  paid  by  the  most  favored  nation.  The  subject  of 
the  dues  was  brought  up  for  discussion  in  consequence  of  the  British- 
Danish  treaty  of  1841,  which,  as  the  ITnited  States  maintained,  virtu- 
ally imposed  on  raw  sugar  and  rice  in  paddy  a  duty  of  '2  per  cent 
to  the  detriment  of  the  trade  of  the  United  States.^  This  question 
was  duly  adjusted.''  The  subject  of  the  dues  was.  however,  revived 
by  Mr.  Calhoim  in  1844,  who  instructed  the  diplomatic  representative 
of  the  United  States  at  Copenhagen  to  obtain  further  information 
concerning  it.'' 

^  Under  the  public  law  of  nations,  it  can  not  be  pretended  that 
Denmark  has  any  right  to  levy  duties  on  vessels  passing  through  the 
sound  from  the  Xorth  Sea  to  the  Baltic.  Tender  that  law.  the  navi- 
gation of  the  two  seas  connected  by  this  strait  is  free  to  all  nations; 
and  therefore  the  navigation  of  the  channel  by  which  they  are  con- 
nected ought  also  to  be  free.  In  the  language  employed  by  Mr. 
A\'heaton,  '  even  if  such  strait  be  bounded  on  both  sides  by  the  terri- 
tory of  the  same  sovereign,  and  is  at  the  same  time  so  narrow  as  to 
be  commanded  by  cannon-shot  from  both  shores,  the  exclusive  terri- 
torial jurisdiction  of  that  sovereign  over  such  strait  is  controlled  by 
the  right  of  other  nations  to  comnnniicate  with  the  seas  thus  con- 
nected.' But  the  sound  is  not  l)ounded  on  both  its  shores  by  Danish 
tei-ritorv.  nor  has  it  been  since  the  treaty  of  Roeskild,  in  1658,  by 
which  all  the  Danish  provinces  beyond  the  sound  were  ceded  to 
Sweden,  So  that  even  this  pretext  for  levying  the  sound  dues  has 
ceased  to  exist  for  nearlv  two  centuries. 


n  Whoaton's  International  Law  (Dana's  od. ).  li(>4. 

6  Mr.  Wohster.  Sec.  of  State,  to  -Mr.  .lackson.  inin.  to  Denmark.  No.  0.  Sept.  1, 
1S41.  II.  K.\.  I)o<".  108.  :iS  Cons.  1  sess.  U. 

'•.Mr.  Webster.  Sec.  of  State,  to  Mr.  Billo.  Danish  niin..  .Tune  27.  1842,  H.  Ex. 
Doc.  108,  :'..•'»  Cons.  1  sess.  U. 

•^  Mr.  Cailionn.  Sec.  of  State,  to  Mr.  Irwin,  inin.  to  Denmark,  No.  12,  Sept.  13, 
1844.  II.  Ex.  Doc.  108,  33  Cong.  1  sess.  29. 


§  134.]  DANISH    SOUND   DUES.  661 

"  It  is  true  that  for  several  centuries  Denmark  has  continued  to 
levy  these  dues ;  and  she  now  claims  this  as  a  right,  '  upon  inunemo- 
rial  prescrijDtion,  sanctioned  by  a  long  succession  of  treaties  with 
foreign  powers.'  But  the  foundations  of  this  claim  were  laid  in  a 
remote  and  barbarous  age,  even  before  the  discovery  of  America ;  and 
the  reasons  which  are  now  alleged  in  its  support  have  no  application 
whatever  to  the  United  States.  They  apply  exclusively  to  the  na- 
tions of  Europe. 

'•  It  may  be  said  that  the  5th  article  of  our  treaty  with  Denmark 
of  the  2()th  April,  18*2G,  gives  an  indirect  sanction  to  this  practice,  by 
providing  that  '  neither  the  vessels  of  the  United  States  nor  their 
cargoes  shall,  when  they  pass  the  sound  or  the  belts,  pay  higher  or 
other  duties  than  those  which  are  or  may  be  paid  by  the  most  favored 
nation."  But  this  article  does  not  recognize  the  right  of  Denmark  to 
levy  these  duties.  It  is  a  mere  submission  to  the  practice  for  a  period 
of  ten  years;  and  the  Government  of  the  United  States  may  now  at 
any  moment  give  the  notice  required  by  the  treaty,  and  thus  terminate 
it  at  the  end  of  one  year. 

"  These  duties  are  both  vexatious  and  onerous  to  our  navigation. 
The  loss  of  time  and  delay  of  our  vessels  at  Cronberg  castle,  whilst 
the  duties  are  assessed  and  paid,  constitute  a  serious  annoyance  and 
injury  to  our  commerce.  Besides,  the  amount  of  duties  is  so  great  as 
to  be  a  heavy  burden  upon  our  trade  to  the  Baltic.  Your  predecessor, 
Mr.  Irwin,  in  a  despatch  under  date  of  the  8d  June,  1847,  Xo.  121, 
to  which  I  refer  you,  has  furnished  the  department  with  tabular 
statements  of  the  amount  of  these  duties  exacted  from  American  ves- 
sels for  a  period  of  sixteen  years,  from  1828  to  1843,  both  inclusive; 
from  which  it  appears  that  the  average  for  each  year  would  amount 
to  $107,4G7.T1.  According  to  these  statements,  the  average  tonnage 
of  our  vessels  going  through  the  sound  during  these  years  was  21.415, 
and  that  returning  was  21,108  tons.  This  sum  would,  therefore,  Ije 
about  equal  to  an  average  tonnage  duty  upon  each  vessel  for  passing 
and  repassing  the  sound  of  $5  per  ton,  including  both  voyages.  Be- 
sides there  are  other  charges  for  light-money,  fees,  etc.  This  large 
tax  is  paid  by  vessels  of  the  United  States  for  liberty  to  pass  through 
a  strait  between  two  seas,  which,  by  the  law  of  nature  and  of  nations, 
is  free  and  open  to  all  mankintl !  The  United  States  have  thus  long 
submitted  to  the  exaction  from  deference  and  respect  for  Denmark; 
but  it  can  not  be  expected,  gi*eat  as  is  our  regard  for  that,  ancient  and 
respectable  power,  that  we  sliall  submit  to  it  much  longer.  .  .  . 

"  It  is  probable  that  two  years  might  elapse  before  the  existing  con- 
vention could  be  terminated,  as  an  act  must  first  ])ass  Congress  to 
enal)le  the  President  t(;  give  the  recjuired  notice,  after  which  a  year 
must  expire  Ijefore  it  could  be  rendered  effectual.  During  the  whole 
period  our  vessels  would  be  subject  to  the  sound  dues  under  the  pres- 


liG2  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS,  [§  134. 

eiit  convention.  For  this  reason,  if  you  should  find  it  indispensable  to 
>iu-cess.  but  not  otherwise,  you  mux  stipulate  to  pay  the  Government  of 
Denmark  a  sum  not  exceeding  $-2o0.000:  but,  in  that  event,  the  abro- 
gation of  the  sound  and  belt  dues  must  be  made  perpetual,  and  must 
ix>  excludeil.  in  express  terms,  from  any  notice  which  may  hereafter 
be  given  by  either  pnvty  to  terminate  the  treaty." 

Mr.  Hiu-banaii.  Seo.  of  State,  to  Mr.  Flenniken,  uiin.  to  Denmark,  No.  7. 
Oct.  14.  184S.  Fl.  Ex.  Doc.  lOS.  :«  Cong.  1  ses.s.  .38,  HJ),  42  MS.  Inst. 
Denmark.  XIV.  59, 

In  1858  the  (lovernment  of  Denmark  was  advised  of  the  purpose  of 
the  United  States  to  press  the  subject  of  the  sound  dues  to  a  conclu- 
sion. The  dues,  it  was  declared,  affected  tlie  United  States  more  sen- 
sibly tha-n  any  European  tuition,  and  in  respect  of  their  chief  staple, 
raw  cotton,  operated  as  a  discrimination  against  American  commerce, 
^"ague  intimations,  it  was  observed,  had  occasionally  been  given  at 
Copenhagen  that  the  soimd  tolls  were  guaranteed  to  Denmark  by  the 
Congress  of  Vienna,  as  an  indemnity  for  the  surrender  of  Norway  to 
Sweden.  "Admitting  the  truth  of  this,  and  that  every  P2uropean 
government  was  irrevocably  bound  by  such  proceeding,  the  United 
►States,*"  it  was  declared,  "  were  not  a  party  to  it  in  any  way,  and  no 
obligation  is  imposed  upon  them  to  respect  the  arrangement.  Noth- 
ing has  Ix'eii  more  remote  from  the  purpose  of  our  (lOvernment.  from 
the  day  on  which  it  was  ushered  into  existence,  than  that  of  surrender- 
ing to  any  power  its  right  of  using  the  ocean  as  the  highway  of  com- 
merce. This  right  it  claims,  and  will  use  all  proper  means  to  secure 
to  itself  the  full  enjoyment  of  in  every  quarter  of  the  glol^e."" 

In  his  annual  message  of  1854  President  Pierce  stated  that  he 
deeme<l  it  expedient  to  notify  the  (xovernment  of  Denmark  of  the 
intention  of  the  United  States  to  terminate  the  treaty  of  1H'2('k  in 
accordance  with  its  terms.  By  a  resolution  of  the  vSenate.  ])as.sed 
March  ^>.  1855.  the  President  was  authorized  to  give  such  notice,  and 
it  was  a<-cor(lingly  given  April  II,  1855.^ 

The  United  States,  though  doubtful  as  to  the  course  which  various 
P^nrojjean  jjowcrs  might  pursue,  counted  upon  the  support  of  Prussia. 
Of  this  sMp|)oi-t.  however,  the  United  States  had  received  no  assnr- 
;;nce,  its  action  being  inspired  by  the  detennination  no  longer  to  sub- 
mit to  the  collection  of  tiu>  tolls.''     But  the  course  of  the  United  States 

"  -Mr.  Marcy.  Sec  of  State,  to  Mr.  Ke<linj:i'r.  min.  to  Denmark.  July  18.  1S."»:{. 
II.  i:.\.  Doc.  I(t8,  ;W  Cong.  1  sess.  i>^,  50. 

'' rrcsident  IMerce.  annual  message, Dec.  'M.  18.5."(.  II.  Ex.  I)(k'.  1,  .34  Cong.  1 
sfss.  !•:  Cniig.  (;iol)e.  'M  Cong.  1  sess..  \)t.  '_'  ( 18.">-.5(i ).  82(!;  Sclniyler,  Am.  Diplo- 
macy. .314. 

•  -Mr.  Marcy.  Sec  of  State,  to  Mr.  Vroom.  min.  to  Prussia,  Sept.  L'O.  185.5,  MS. 
Inst.  I'ms-sia,  XIV.  L'U'G. 


§  134.]  DANISH    SOUND   DUES.  663 

was  generally  sustained  by  the  sentiment  of  the  commercial  world ; 
and  in  October,  1855,  Denmark  invited  the  interested  governments, 
including  the  United  States,  to  take  part  in  a  conference  in  Europe 
for  the  purpose  of  doing  away  with  the  collection  of  the  dues,  in  con- 
nection witli  a  plan  for  their  capitalization.  This  invitation  the 
United  States  declined,  for  reasons  stated  by  President  Pierce  in  his 
annual  message  of  1855.  One  of  thase  reasons  was  that  Denmark  did 
not  offer  to  submit  to  the  conference  the  question  of  her  right  to 
levy  the  tolls.  The  second  was  that,  if  the  conference  were  allowed 
"  to  take  cognizance  of  that  particular  question,  still  it  would  not  be 
competent  to  deal  with  the  great  international  principle  involved, 
which  affects  the  right  in  other  cases  of  navigation  and  commercial 
freedom,  as  that  of  access  to  the  Baltic.  Above  all,"  continued  Presi- 
dent Pierce,  "  by  the  express  terms  of  the  proposition  it  is  contem- 
plated that  the  consideration  of  the  sound  dues  shall  be  commingled 
with  and  made  subordinate  to  a  matter  wholly  extraneous — the  bal- 
ance of  power  among  the  governments  of  Europe."  President  Pierce 
added,  however,  that  he  had  expressed  to  Denmark  a  willingness  on 
the  part  of  the  United  States  to  share  liberally  with  other  powers 
in  compensating  her  for  any  advantages  which  commerce  should 
thereafter  derive  from  expenditures  made  by  her  for  the  improve- 
ment and  safety  of  the  navigation  of  the  sound  or  belts. 

••  By  a  convention  of  April  11,  1857,  between  the  United  States  and 
Denmark,  the  navigation  of  the  sound  and  belts  is  declared  free  to 
xVmerican  vessels;  and  Denmark  stipulates  that  these  passages  shall 
be  lighted  and  buoyed  as  heretofore,  and  to  make  such  improvements 
in  them  as  circumstances  may  require,  without  any  charges  to  Amei'i- 
can  vessels  and  their  cargoes,  and  to  maintain  the  present  establish- 
!ueiit  of  pilots,  it  being  optional  for  American  masters  to  employ  them 
at  reasonable  rates  fixed  by  the  Danish  (xovernment  or  to  navigate 
their  own  vessels.  In  consideration  of  these  stipulations  the  United 
States  agreed  to  pay  to  Denmark  717,829  rix-dollars,  or  $393,011  in 
(he  currency  of  the  United  States.  Any  other  privileges  granted  by 
Denmark  to  any  other  nation  at  the  sound  and  belts,  or  on  her  coasts 
and  in  her  harbors,  with  reference  to  the  transit  by  land,  through 
Danish  territory,  of  their  merchandise,  sliall  be  extended  to  and 
enjoyed  by  citizens  of  the  United  States,  their  vessels  and  property. 
The  convention  of  A})ril  '2G,  182(5,  to  become  again  binding,  except  as 
regards  the  article  referring  to  the  sound  dues.  United  States 
Statutes  at  Large,  vol.  xi,  p.  719." 

Lawrence's    Wheaton    (18(58),    '.V.\~k     See.    also,    Benton's    Thirty    Years' 

View,  II.  .SCL'. 
The  subject  of  the  sound  dues  is  discussed  in  Woolsey's  Int.  Law,  §  61 ; 

North  American   Heview   for  .Ian.   18.^)7;  2  Fiore  Droit   Int.,  2d  ed. 

(trans,  by  Antoine,  1885),  §  724;  3  Calvo  Droit  Int.,  3d  ed.  342. 


604  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  134. 

The  forrespoiulence  of  the  Uniteil  States  with  Denmark  may  be  found  in 

45  Hr.  &  For.  State  I'apers.  807. 
The  (•()rresiK)ndence  of  Great  Britain  may  be  found  in  the  same  series,  vol. 

4(!.  p.  (J5(t. 

A  prohibition  to  engage  in  the  coasting  trade  is  not  a  violation  of 
the  right  of  free  navigation  of  Fuca's  Straits,  secured 
to  the  United  States  and  (Ireat  Britain  by  the  treaty 
of  June  IT).  184(). 

-Mr.  Wharton.  Acting  See.  of  State,  to  Sec.  of  Treasury,  May  22.  1891,  182 
MS.  Dom.  Let.  71>. 

The  Govennnent  of  the  United  States  will  not  tolerate  exclusive 

straits  of  Magei-     chiims  l)y  any  nation  whatsoever  to  the  Straits  of 

Ian.  Magellan,  and  will  hold  responsible  any  government 

that  undertakes,  no  matter  on  wliat  pretext,  to  lay  any  impost  or 

check  on  United  States  commerce  through  those  straits. 

Mr.  Evarts.  See.  of  State,  to  Mr.  Osborn,  Jan.  18.  1879,  MS.  Inst.  Chile, 

XVI.  SAS. 
Art.  V.  of  the  treaty  between  the  Argentine  Republic  and  Chile  of  .July 

2."'.  ISSl,  provides:  "Magellan's  Straits  are  neutralized  forever,  and 

free  navigation  is  guaranteed  to  the  tiags  of  all  nations.     To  insure 

this  liberty  and  neutrality  no  fortifications  or  military  defenses  shall 

be  created  that  could   interfere  with  this  object."     (72  Br.  &  For. 

State  Pai'tM's.  1104.) 
See  For.  Kel..  1879,  2.3 ;  Abribat.  Le  Detroit  de  Magellan  au  point  de  vue 

international :   Paris.  19()8. 
As  to  the  Strait  of  Canso.  see  infra.  §  1(J3.  on  the  northeastern  fisheries. 

See  also  S.  Ex.  Doc.  1(K).  ,32  Cong.  1  sess.  73-74,  81,  lOfi,  108,  113,  1.3.5; 

Sabine's  Uejjort  on  the  Fisheries,  228.  229,  230,  2»!3,  287-290;  For. 

Bel.  1870.  430;  For.  Kel.  1873.  III.,  284. 

By  treaties  with  various  European  powers  from  1TT4  to  1806  Tur- 

kev  agreed  to  the  free  navigation  of  the  Dardanelles 

The  Dardanelles.     ,     '  •    ,  i    „       \    i-   i      t^tt       j:   j.\       j.        a 

by  commercial  vessels."     Article   \  11.  oi  the  treaty 

between  tlie  Ignited  States  and  Turkey  of  May  7,  1880,  declared  that 

■•  merchant   vessels  of  the  United  States,  in  like  manner  as  vessels 

of  the  most  favored  nation."  should  ''  have  liberty  to  pass  the  canal 

of  the  imperial  residence  and  go  and  come  in  the  Black  Sea.  either 

laden  or  in  ballast."     Nothing  was  said  as  to  ships  of  war. 

By  the  treaty  l)etween   Austria.   France.  Great  Britain,   Prussia. 

Russia,  and  Turkey,  signed  at  London  July  13,  1841,  it  was  declared 

that  the  Sultan  Avas  firmly  resolved  to  maintain  the  ancient  rule  of 

his  Emj^ire,  by  which  the  entrance  of  foreign  men-of-war  into  the 

Dardanelles  and  the  Bosphorous  was  prohibited.     The  other  powers 

engaged  to  respect  this  determination  of  the  Sultan.     Tt  was  further 

declanMl,  liowever.  that  the  Sultan  reserved  to  himself,  as  in  the 

a  Schuyler,  Am.  Diplomacy,  317. 


§  134.]  THE    DARDANELLES.  665 

past,  the  right  to  deliver  firmans  of  passage  for  light  vessels  under 
flags  of  war  which  should  be  employed,  as  usual,  in  the  service  of  the 
missions  of  foreign  powers. 

By  Article  XI.  of  the  treaty  of  Paris  of  March  30,  1856,  the 
Black  Sea  was  declared  to  be  neutralized,  and  its  waters  and  ports 
were  thrown  open  to  the  njercantile  marine  of  every  nation,  but 
••  formally  and  in  perpetuity  interdicted  to  the  flag  of  war,"  except 
that  Russia  and  Turkey  reserved  the  right  to  maintain  in  the  Black 
Sea  a  certain  number  of  light  vessels  for  the  service  of  their  coasts, 
while  each  of  the  contracting  powers  was  to  be  permitted  to  station 
two  light  vessels  at  the  mouth  of  the  Danube  for  the  purpose  of  in- 
suring the  execution  of  the  regulations  for  its  navigation.  By  a 
separate  convention,  signed  by  all  the  powers  March  80,  185(),  the 
rule  of  the  treaty  of  1841  with  regard  to  the  exclusion  of  foreign 
ships  of  war  from  the  Dardanelles  and  the  Bosphorous  was  expressly 
reaffirmed.  By  the  treaty  of  London  of  ^larch  13,  1871,  it  was  de- 
clared that  the  principle  of  closing  the  Straits  of  the  Dardanelles 
and  the  Bosphorous,  as  established  by  the  separate  convention  of 
March  30,  185G,  was  "maintained,  with  power  to  his  Imperial 
Majesty  the  Sultan  to  open  the  said  straits  in  time  of  peace  to  the 
vessels  of  war  of  friendly  and  allied  powers,"  in  case  he  should  judge 
it  necessary  in  order  to  secure  the  execution  of  the  general  treaty  of 
Paris  of  :\iarch  30,  1850. 

''  Your  despatches  to  Xo.  23,  inclusive,  with  the  exception  of  Xo. 
IC),  have  been  received.  There  is  no  disposition  to  question  the  state- 
ment of  Prince  Gortchakotf  that  the  Russian  minister  at  Constanti- 
nople, in  protesting  against  the  visit  of  the  Wabash  to  that  city,  was 
actuated  by  a  regard  to  the  obligations  of  his  Government  as  a  party 
to  the  treaty  of  Paris,  and  not  by  unkind  feelings  toward  the  United 
States.  As  this  Government,  however,  was  not  a  party  to  that  instru- 
ment, it  is  conceived  that  it  could  not,  upon  the  occasion  adverted  to, 
or  upon  any  similar  one,  be  expected  to  act  in  conformity  with  the 
views  of  any  other  of  those  parties  than  the  Sublime  Porte." 

Mr.   Cass.   Sec.   of  State,   to   Mr.   IMcktMis.   nun.   to  Russia,   .Tan.   14.   18;j9, 
MS.  Inst.  Russia,  XIV.  IT)!). 

In  18G8  the  President  was  requested,  by  a  resolution  of  the  House 
of  Representatives,  to  instruct  the  minister  of  the  United  States  at 
Constantinople  to  urge  upon  the  Government  of  the  Sultan  the  abo- 
lition of  all  restrictions  and  charges  upon  the  passage  of  vessels  of 
war  and  connnerce  through  the  straits  of  the  Dardanelles  and  Bos- 
phorus  to  the  Black  Sea,  and  to  endeavor  to  procure  "the  perfect 
freedom  of  navigation  through  those  straits  to  all  classes  of  vessels." 
Xo  action  appears  to  have  been  taken  under  this  resolution  beyond 
instructing  the  minister  to  obtain  for  the  Department  of  State  such 


(>66  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  134. 

infoniuition  as  he  might  bo  able  to  secure  concerning  the  obstructions, 
restrictions,  charges,  or  burdens  of  any  sort  to  which,  by  any  treaty, 
hnv.  decree,  or  custom,  ships  of  war  and  trading  vessels  were  sub- 
jected or  exposed  in  the  navigation  of  the  Dardanelles,  Bosphorus, 
and  Black  Sea. 

Mr.  Seward.  Sec.  of  State,  to  Mr.  Morris,  min.  to  Turkey.  .Inly  11.  1868, 
.MS.  Iii.<<t.  Turkey.  II.  221. 

A  siiiiiliir  instruetiou  was  acklresse<l  to  Mr.  Clay.  United  States  minister 
at  St.  Petersburg,  who  applietl  to  tlie  ministry  of  foreign  affairs,  but 
failed  to  oi»tain  any  information.  The  Ru.ssian  minister  at  Washing- 
ton was  subse<iuently  advised  that"  it  was '"  uncertain  "  wliether  the 
President  would  take  the  "  initiatory  measure "  which  the  resolu- 
tion i»roi)osed.  It  was  at  the  s.ime  time  stated  that  the  United  States 
were  '"  in  prin(ii)le  and  by  habit  favorable  to  the  largest  freedom  of 
navigation  and  commerce  compatible  with  the  rights  of  individual 
nations."  and  might  therefore  be  expected  to  "  favor  the  removal  of 
the  lestrictions  upon  the  navigation  of  the  Bosphorus  and  Darda- 
nelles within  the  limits  of  international  law."  (Mr.  Seward,  Sec.  of 
State,  to  Mr.  Stoeckl,  Russian  min..  Oct.  '>,  18G8,  MS.  Notes  to  Rus- 
sian Legation,  VI.  273.) 

In  May.  1S71,  the  American  legation  at  Constantinople  was  in- 
structed that  the  Ignited  States  was  "'  not  disposed  to  prematurely 
raise  any  question  to  disturb  the  existing  control  which  Turkey 
claims  over  the  straits  leading  into  the  Euxine."'  The  United  States, 
it  was  said,  had  observed  the  acquiescence  of  other  powers  who.se 
greater  pro})in<|uity  would  suggest  more  intimate  interests  in  the  usage 
wherein'  the  Porte  claimed  the  right  to  exclude  national  vessels  of 
other  powers  from  the  passage  of  those  straits;  but,  while  this  Gov- 
ernment did  not  deny  the  existence  of  the  usage  and  had  had  no  occa- 
sion to  ([uestion  the  j)ropriety  of  its  observance,  the  President  deemed 
it  ••  impoi'tant  to  avoid  recognizing  it  as  a  right  under  the  law  of 
nation.s."  The  jiosition  of  Turkey  with  reference  to  the  P^uxine  was 
compared  with  that  of  Denmark  with  reference  to  the  Baltic,  except 
ihat  Tui'key  was  sovereign  over  the  soil  on  both  sides  of  the  straits, 
whih'  Sweden  owned  the  territory  on  the  east  of  the  sound  leading 
to  the  Bahic.  Tlie  Danish  sound  ducM  had.  however,  l)een  abolished 
by  the  payment  of  a  gi-oss  sum  by  each  country  pro})ortionate  to  the 
amoimt  of  its  tonnage  j)assing  through  the  sound.  Continuing,  tlie 
I)ej)artu>ent  of  State  said: 

••  We  are  not  awaiv  that  Denmark  claimed  the  right  to  exclude  for- 
«'ign  vessels  of  war  from  the  Baltic  merely  Iwcause  in  proceedinir 
thitiier  they  nuist  necessarily  pass  within  cannon  shot  of  her  shores.  If 
this  right  lias  been  claimed  by  Turkey  in  respect  to  the  Black  Sea,  it 
must  have  originated  at  a  time  when  she  was  positively  and  compara- 
tively in  a  unich  more  advantageous  position  to  enforce  it  than  she 
now  is.     The  Black  Sea,  like  the  Baltic,  is  a  vast  expanse  of  waters, 


§  134.]  THE    DARDANELLES.  667 

which  wash  the  shores  not  alone  of  Turkish  territory,  but  those  of 
another  great  power  who  may,  in  times  of  peace  at  least,  expect  visits 
from  men-of-war  of  friendly  states.  It  seems  unfair  that  any  such 
claim  as  that  of  Turkey  should  be  set  up  as  a  bar  to  such  an  inter- 
course, or  that  the  privilege  should  in  any  way  be  subject  to  her  suf- 
ferance. There  is  no  practical  question  making  it  necessary  at 
present  to  discuss  the  subject,  but  should  occasion  arise  when  you  are 
called  upon  to  refer  to  it.  you  will  bear  in  mind  the  distinction  taken 
al)ove,  and  be  cautious  to  go  no  further  than  to  recognize  the  exclusion 
of  the  vessels  as  a  usage.'' 

Mr.  Fish.  Sec.  of  State,  to  Mr.  MeVeagh.  niin.  to  Turkey.  No.  29.  May  n. 
1S7L  For.  Rel.  187L  !¥>2. 

See.  also,  dispatches  of  Mr.  MacVeagh,  niin.  to  Tiirliey.  to  Mr.  Fish,  Sec. 
of  State,  of  .Jan.  24,  1S7L  and  March  27,  1871,  For.  Rel.  1871,  892. 
897.  Mr.  MacVeagh  in  these  dispatches  maintains  the  position  that 
the  closing  of  the  straits  to  ships  of  war  has  never  been  based  u|)on 
the  agreement  of  the  powers  recognizing  it.  but  always  ui)on  the 
"  undoubted  rights  "  of  the  Ottoman  Empire,  and  that  "  we  began  our 
intercourse  with  Turkey  by  a  treaty  which  secured  for  our  vessels 
of  connnerce  the  right  of  passing  these  straits,  and  thus  excluded  the 
idea  that  we  possessed  the  same  right  for  our  ships  of  war."  (For. 
Rel.  1871.  890.  899.) 

"  Your  despatch  Xo.  68,  of  the  30th  of  November  last,  has  been 
received.  This  Department  understands  that  Captain  Rhind  of  the 
Congress  had  no  authority  to  apply  for  a  firman  for  that  vessel  to 
I)ass  the  Dardanelles.  Tt  is  therefore  more  or  less  a  matter  of 
regret  that  he  should  have  made  the  application  for  that  purpose 
tlii-ough  you,  and  that  you  should  have  deemed  it  your  duty  so 
l)r()mptly  to  accede  to  his  request.  He  is  known  as  a  brave,  enter- 
prising and  skilful  offTcer.  As  such  it  was  natural  that  he  shoidd 
have  Ijeen  ambitious  to  carry  his  vessel  to  Constantinople  as  a  speci- 
men of  the  naval  force  of  his  country.  It  is  presumed,  however,  that 
lie  could  not  have  been  well  aware  of  the  obstacles  to  that  step,  of 
ihe  precedents  upon  the  subject,  and  especially  of  the  circular  of 
Fuad  Pasha  to  the  rej)re.sentatives  of  the  powers  at  Constantinople. 
l)earing  date  the  IDth  of  August,  and  referred  to  in  Mr.  Morris's 
desi)atch  of  the  -JDth  of  October,  18()S. 

••  The  abstract  right  of  the  Turkish  Government  to  obsti'uct  the 
navigation  of  the  Dardanelles  even  to  vessels  of  war  in  time  of 
peace,  is  a  serious  question.  The  right,  however,  has  for  a  long  time 
been  claimed  and  has  been"  sanctioned  by  treaties  between  Turkey  and 
certain  European  states.  A  proper  occasion  may  arise  for  us  to  dis- 
jMite  tlie  applicability  of  the  claim  to  United  States  men-of-war. 
Meanwhile  it  is  deemed  expedient  to  acquiesce  in  the  exclusion." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Hoker.  min.  to  Turkey,  Jan.  3,  1873, 
MS.  Inst.  Turkey.  IL  4.")2. 


668  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  134. 

■•  I  have  to  acknowledge  the  reception  of  your  Xo.  7"2,  dated  the  17th 
day  of  December  hist.  The  request  of  the  commander  of  the  Shenan- 
(luiiJt  for  leave  to  pass  the  Dardanelles  was,  as  you  have  been 
informed,  unauthorized  by  the  Navy  Department  and  counter- 
manded. The  article  from  the  Lerant  Herald,  which  accompanies 
your  despatch,  does  not  state  whether  the  shot  was  fired  at  the  French 
steamer,  or  in  front,  a>;  a  signal  to  stop.  The  United  States  are  not  a 
party  to  the  convention  which  professes  to  exclude  vessels  of  war 
from  the  Dardanelles;  and  while  it  is  disposed  to  respect  the  tradi- 
lioiuil  sensibility  of  the  Porte  as  to  that  passage,  the  shot  which  it  is 
suj)})osed  may  have  been  intended  for  a  national  vessel  of  this  Govern- 
ment might  if  it  had  Ix'en  directed  according  to  the  supposed  inten- 
tion have  precipitated  a  discussion  if  not  a  serious  complication." 

Mr.  Fish.  Sec.  of  State,  to  Mr.  Boker,  uiin.  to  Turkey.  Jan.  ll."t.  187.3, 
MS.  Inst.  Turkey.  II.  4.".(;. 

Acting  upon  a  request  made  by  Admiral  Sel fridge.  U.  S.  Navy, 
Mr.  Terrell,  American  minister  at  Constantinople,  in  November.  1895, 
asked  the  Porte  for  a  firman  to  enable  the  Admiral  to  pass  the  Dar- 
danelles with  the  U.  S.  S.  Mdrhlehcad  and  visit  the  Ottoman  capital. 
The  application  was  refused  by  the  Sultan,  who  expressed  apprehen- 
sion that,  if  the  desired  permis.sion  should  be  granted,  other  powers 
would  seek  to  take  advantage  of  it.  and  specially  requested  that  the 
Admiral  should  not  come  to  the  Dardanelles. 

Mr.  Terrell,  niin.  to  Turkey,  to  Mr.  Olney,  Sec-,  of  State.  Nov.  "Jl  and  Dee. 
ti.  l.sa"..  For.  Rel.  18!t.-i.  II.  i:U4.  !:«:?. 

See.  also.  Mr.  Sherman.  Sw.  of  State,  to  Mr.  Terrell,  luln.  to  Turkey, 
tel..  April  8.  181»7.  MS.  Inst.  Turkey.  VII.  72:  same  to  same.  Aitril  10. 
1897,  id.  ~'^ :  Mr.  Terrell,  niin.  to  Turkey,  to  Mr.  Sherman,  See.  of 
State,  tel..  April  8.  18!»7 ;  and  dispatch  No.  1278.  May  4.  1807.  tlTj  MS. 
Dispatches.  Turkey. 

See.  also.  Mr.  Olney.  Sec.  of  State,  to  Mr.  Baldwin.  Nov.  2C,.  189.~>.  2(M;  MS. 
Dom.  Let.  2o:i. 

*'  His  E.xcellency  Tevtik  Pasha  has  just  informe<l  nie  that  the  Sublime 
Porte  rejrrets  that  it  can  not  comply  with  Mr.  Terrell's  reijuest  for 
l>erinission  for  the  Baucmft  to  i>ass  throuj^h  the  strait,  that  vessel 
havinj:  l»e«'n  authorizetl  to  remain  at  the  disjKJsal  of  the  Fnited  States 
legation  at  Constantinople. 

*'  Your  excellency  knows  jierfectly  well  the  earnest  and  sincere  desire  of 
the  Imperial  (iovernment  to  do  all  in  its  jKjwer  to  strengthen  if  pos- 
sible the  ties  of  friendship  which  unite  the  two  c(mntries.  but  in  this 
case  a  certain  fact  is  involvetl.  to  wit.  that  only  the  siitrnatory  powers 
of  the  treaty  of  Paris  enjoy  the  right  to  have  ves.sels  of  war  i)erma- 
nently  at  Constantinople  at  the  orders  of  their  resjiective  embassies. 
Now.  the  T'nite<l  States  (iovernment  does  not  api>ear  in  the  number 
of  the  signatories  of  that  treaty.  I  am.  c*onsequently,  sure  that  your 
e.xcellency  will  be  please<l  to  take  the  foregoing  into  consideration." 
(Mavntyeni  Bey.  Turkish  niin..  to  Mr.  Olney,  Sec.  of  State,  Jan.  KJ, 
189«J,  For.  liel.  1895,  11.  1401.) 


§  135.]  INTERIOR    WATERS.  669 

5.  Intkrior  Seas  and  Lakes. 

§135. 

Interior  seas  and  lakes  form  part  of  the  territory  in  the  same  sense 
as  does  the  land.  An  interior  sea  is  one  that  has  no  direct  communi- 
cation  with  the  ocean.  If  it  is  entirely  surrounded  by  the  lands  of  a 
single  state,  such  state  has  over  it  the  same  exclusive  and  absolute 
right  as  it  has  over  any  part  of  its  territory,  and  may  forbid  or  permit 
access  to  or  use  of  it. 

The  same  principle  applies  to  a  lake  surrounded  on  every  side  by  the 
lands  of  the  state.  The  fact  that  the  water  of  the  sea  is  salt  and  that 
of  the  lake  fresh,  is  a  matter  of  indifference  from  the  legal  point  of 
view.  Interior  seas  are  in  reality,  in  spite  of  their  names,  merely 
salt  lakes. 

Interior  seas  and  lakes,  enclosed  by  the  lands  of  two  or  more  states, 
belong  to  them  in  proportionate  parts,  unless  it  is  otherwise  provided. 

The  water  itself,  considered  independently  of  the  soil,  is  common. 

There  is  no  question,  in  respect  of  interior  seas,  either  of  freedoni" 
of  the  sea  or  of  marginal  sea,  since  these  ideas  exist  only  in  respect  of 
the  ocean. 

The  best  example  of  an  interior  sea  is  the  Dead  Sea.  As  examples 
of  interior  lakes  we  may  cite  Lake  Michigan,  entirely  American, 
though  it  connects  with  Lake  Huron ;  Lakes  AVinnipeg  and  Manitoba, 
which  are  English:  Lakes  Ladoga  and  Onega,  which  are  Russian; 
Lakes  Wenern  and  AVettern,  Swedish:  Lake  Balaton,  Hungarian; 
Lakes  Zurich,  Quatre  Cantons.  Xeuchatel,  Morat,  and  Bienne  are 
entirely  Swiss.     Lakes  Thoune  and  Brienz  are  wholly  Bernese. 

The  Caspian  Sea  is  surrounded  by  Russia  and  Persia,  but,  by  virtue 
of  the  treaties  of  Gulistan  (1813)  and  Tourkmantscha'i  (1828),  it  is 
subject  practically  to  Russian  control ;  Russian  authorities  adminis- 
ter it,  and  only  Russia  has  the  right  to  keep  ships  of  war  in  it.  The 
Sea  of  Aral  is  entirely  Russian.  Lake  Leman  belongs  to  Switzerland 
(Vaud,  Geneva,  and  Valais)  and  to  France  in  divided  parts.  Lake 
Constance  belongs  to  Germany  (Baden,  Bavaria,  AVurtemburg) ,  to 
Switzerhind  (Thurgovia,  St.  Gall),  and  to  Austria.  Opinions  are 
divided  as  to  Lake  Obersee.  but  it  is  necessary  to  pronounce  in  favor 
of  division:  the  principle  of  the  meridian  line  is  established  by  the 
treaties  of  1554  and  1854. 

Rivi  M-,  Principes  dn  Droit  des  Gens,  I.  143-145,  230. 

See.  also.  Wharton.  Com.  on  Law,  §  192 ;  Woolsey,  §  fil  :  Holtzendorfif, 
Ilandbuch.  4th  ed.  1882,  1222,  referring;  to  Twiss.  Territorial  Waters, 
Xantical  Mas..  1878;  Stork.  Murisdilvtion  in  Kiistengewjissern ;  Re- 
nault. Dp  I'exercise  de  jnridietion  criniinelle  dans  la  mer  territoriale, 
Journal,  de  droit  int.  prive,  VI.  217. 


(i70  NATIONAL  jurisdiction:  territorial  limits.       [§  13G. 

(j.  The  (jreat  Lakes." 

(1)   JURISDICTION. 

§  136. 

K.  wa?;  iiulictod  in  tlio  district  court  of  the  ITnited  States  for  the 
eastern  district  of  Michigan  for  an  assauU  with  a  dangerous  weapon, 
connnitted  on  the  American  steamer  AhtsJx-a,  while  she  was  in  the 
Deti-oit  Kiver.  out  of  the  jurisdiction  of  any  particuhir  State  and 
within  tlie  limits  of  the  Dominion  of  Canada.  The  indictment  was 
found  under  section  5840  of  the  Revised  Statutes  of  the  United 
States,  by  whicli  the  otfense  in  (question  was  made  punishabk»  when 
connnitted  on  an  American  vessel  "  upon  the  high  seas,  or  in  any  arm 
of  the  sea.  or  in  any  river,  haven,  creek,  basin,  or  bay  within  the 
admiralty  jurisdiction  of  the  United  States  and  out  of  the  jurisdic- 
tion of  any  j)articular  State."  The  defendant  filed  a  plea  to  the 
jurisdiction;  the  United  States  demurred,  and  on  this  demurrer  the 
judges  of  the  circuit  court  certified  a  division  of  opinion  on  the  ques- 
tion whether  the  courts  of  the  United  States  had  jurisdiction  under 
the  section  in  (piestion.  Held,  that  the  inclosed  waters  of  the  (ireat 
Lakes  were  "  high  seas  "  within  tli^  meaning  of  the  statute,  and  that 
the  Detroit  Iviver.  as  a  connecting  stream,  fell  within  the  scope  of 
the  legislative  intention.  The  court  in  the  course  of  its  opinion  said: 
•'  The  (ireat  Lakes  possess  every  essential  characteristic  of  seas. 
They  are  of  large  extent  in  length  and  breadth:  they  are  navigable 
the  whole  distance  in  either  direction  by  the  largest  vessels  known  to 
commerce:  objects  are  not  distinguishable  from  the  opposite  shores; 
they  sei)arate.  in  many  instances.  States,  and  in  some  instances  con- 
stitute the  boundary  i)etween  independent  nations:  and  their  waters, 
after  passing  long  distances,  debouch  into  the  ocean.  The  fact  that 
their  waters  are  fi-esh  and  not  subject  to  the  tides  does  not  atfect 
their  essential  cliaracter  as  seas.  Many  seas  are  tideless,  and  the 
waters  of  some  are  saline  only  in  a  very  slight  degree."' 

Initcd  States  v.  KodK^'is  (ISlCti.  1.">o  V .  S.  124'.».  2.")(>.  14  S.  C't.  101).  opinion 
by  Mr.  .Fusticc  Field.  citinK  (Jenesoe  Chief.  VI  Howard,  44.'},  and  Illi- 
nois ("entr.il  Kiiilioad  r.  Illinois.  14t;  V.  S.  .'JST.  4.">.">,  and  exi)ressing 
disai>pr<»val  of  reojile  r.  T\  Ut,  7  Miehipm,  IGl  ;  Justices  Gray  and 
Hrown  dissented. 

See.  also.  I'nited  States  /■.  Itotrers.  4C»  Fed.  Rep.  1  ;  Iinnan  r.  Lindruji, 
C.-J  Fed.  Ue|>.  K.ll  :    liiited  States  v.  Peterson.  (M  Fed.  Rep.  14.".. 

As  to  Jurisdiction  in  Detroit  River  and  St.  ("lair  Flats,  see  Letter  of  Sec. 
of  War  to  Pres.  pro  tein.  of  Senate.  Dec.  7,  1888,  S.  Ex.  Doc.  52, 
.~»o  ( 'onjT.  '1  sess. 


"  For  the  internatif>nal  boundary  in  the  (ireat  Lakes,  see  Moore,  International 
.Arbitrations,  vol.  1.  chapters  v.  and  vi.  ;  and  vol.  (5  (maps). 


§  136.]  THE    GREAT    LAKES.  671 

"  It  is  the  settled  law  of  this  country  that  the  ownership  of  and 
dominion  and  sovereignty  over  lands  covered  by  tide  waters,  within 
the  limits  of  the  several  States,  belong  to  the  respective  States  in 
which  they  are  found,  with  the  consequent  right  to  use  or  dispose  of 
any  portion  thereof,  when  that  can  be  done  without  substantial 
impairment  of  the  interest  of  the  public  in  the  waters,  and  subject 
always  to  the  paramount  right  of  Congress  to  control  their  naviga- 
tion so  far  as  may  l)e  necessary  for  the  regulation  of  commerce  with 
foreign  nations  and  among  the  States.  This  doctrine  has  been  often 
announced  by  this  court,  and  is  not  questioned  by  counsel  of  any  of 
the  parties.  Pollard's  Lessee  /'.  Hagan,  3  How.  212 ;  AVeber  c.  Har- 
bor Commissioners,  18  Wall.  57. 

''  The  same  doctrine  is  in  this  country  held  to  be  applicable  to  lands 
covered  by  fresh  water  in  the  CJreat  Lakes  over  which  is  conducted  an 
extended  commerce  with  different  States  and  foreign  nations.  These 
lakes  possess  all  the  general  characteristics  of  open  seas,  except  in  the 
freshness  of  their  waters,  and  in  the  absence  of  the  ebb  and  flow  of  the 
tide.  In  other  respects  they  are  inland  seas,  and  there  is  no  reason  or 
principle  for  the  assertion  of  dominion  and  sovereignty  over  and 
ownership  by  the  State  of  lands  covered  by  tide  waters  that  is  not 
equally  applicable  to  its  ownership  of  and  dominion  and  sovereignty 
over  lands  covered  by  the  fresh  waters  of  these  lakes.  At  one  time 
the  existence  of  tide  waters  was  deemed  essential  in  determining  the 
admiralty  jurisdiction  of  courts  in  England.  That  doctrine  is  now 
repudiated  in  this  country  as  wholly  inapplicable  to  our  condition. 
In  England  the  ebb  and  flow  of  the  tide  constitute  the  legal  test  of  the 
navigability  of  waters.  There  no  waters  are  navigable  in  fact,  at 
least  to  any  great  extent,  which  are  not  subject  to  the  tide.  .  .  . 

"  But  in  this  country  the  case  is  different.  Some  of  our  rivers  are 
navigable  for  great  distances  above  the  flow  of  the  tide:  indeed,  for 
hundreds  of  miles,  by  the  largest  vessels  used  in  commerce.  .  .  . 

"  The  Great  Lakes  are  not  in  any  appreciable  respect  affected  by 
Ihe  tide,  and  yet  on  their  waters,  as  said  above,  a  large  commerce  is 
carried  on,  exceeding  in  many  instances  the  entire  commerce  of 
States  on  the  borders  of  the  sea.  When  the  reason  of  the  limitation 
of  admiralty  jurisdiction  in  England  was  found  inapplicable  to 
the  condition  of  navigable  waters  in  this  country,  the  limitation 
and  all  its  incidents  were  discarded.  So  also,  by  the  connnon  law, 
the  doctrine  of  the  dominion  over  and  ownership  by  the  Crown  of 
lands  within  the  realm  under  tide  waters  is  not  founded  upon  the 
existence  of  the  tide  over  the  lands,  but  upon  the  fact  that  the  waters 
are  navigable,  tide  waters  and  navigable  waters,  as  already  said, 
being  used  as  synonymous  terms  in  England.  The  public  being  in- 
terested in  the  use  of  such  waters,  the  possession  by  private  indi- 
viduals of  lands  under  them  could  not  be  permitted  except  by  license 


Cu2  NATIONAL   JtTRlSDICTION  :    TERRITORIAL   LIMITS.  [§  137. 

of  iho  Crown,  which  could  alone  exorcise  such  dominion  over  the 
waters  as  would  insure  freedom  in  their  use  so  far  as  consistent  with 
the  |)ul»lic  interest.  The  doctrine  is  founded  upon  the  necessity  of 
I)rt'servin<r  to  the  public  the  use  of  navigable  waters  from  private 
interruption  and  encroachment,  a  reason  as  applicable  to  navigable 
fresh  waters  as  to  waters  moved  by  the  tide.  We  hold,  therefore, 
that  the  same  doctrine  as  to  the  dominion  and  sovereignty  over  and 
ownership  of  lands  under  the  navigable  waters  of  the  Great  Lakes 
ap])lies,  which  obtains  at  the  common  law  as  to  the  dominion  and 
sovereignty  over  and  ownership  of  lands  under  tide  waters  on  the 
borders  of  the  sea.  and  that  the  lands  are  held  by  the  same  right  in 
the  one  case  as  in  the  other,  and  subject  to  the  same  trusts  and  limi- 
tations."' 

Illinois  Contra]  Railroad  r.  Illinois  (18!>2),  146  U.  S.  ;i87,  4;^.o-^37.  See 
also.  Cushing.  At.-(ien.  (18.5.3),  fi  Op.  172;  Mobile  Transportation 
Co.  r.  Mobile  (1903),  187  U.  S.  479,  482,  491. 

Title  to  and  dominion  over  lands  beneath  the  navigable  waters  of 
the  (ireat  Lakes  are  in  the  States,  respectively,  within  whose  l)oiind- 
aries  such  lands  are  situated,  each  State  holding  the  fee  thereof  in 
trust  for  the  i)eople  for  purposes  of  navigation  and  fishing. 

People  r.  Kirk  (18tK;».  102  111.  i:^.  4.")  N.  E.  8:^0;  Bo<li  r.  Winous  Point 
Sbooting  Club,  57  Ohio  St.  226.  48  N.  E.  944 ;  Dwelle  j-.  Wil.son,  14 
Ohio  Cir.  Ct.  R.  .">1  :  I'eople  r.  Silberwood  (Mich.),  67  X.  W.  1087, 
See,  also,  Allen  i:  Allen,  19  R.  I.  114.  61  Am.  St.  Rep.  7.38. 

An  owner  of  land  on  Lake  Michigan  is  entitled  to  accretions  formed  by 
recession  of  the  water.  '(Chicago  Dock,  &e.,  Co.  v.  Kinzie,  93  111. 
415. ) 

(2)     FISHING    RIGHTS. 

§  137. 

"  This  Department  has  received  two  letters  from  you,  dated,  re- 
spectively. Aj)ril  ll»th  aiKl  30th.  in  relation  to  the  fishing  rights  of 
citizens  of  the  United  States  and  of  Canada  in  the  open  waters  of  the 
(treat  Lakes.  ... 

"The  (|uestion  you  jM-esent.  viz.  whether  citizens  of  the  United 
States  have  the  right  to  fish  in  the  waters  of  the  (Jreat  Lakes  cm  the 
Canadian  side  of  the  boundary  line  as  fixed  by  treaty,  but  at  a  dis- 
tance of  more  than  three  miles  from  the  Canadian  shore,  has  been 
carefully  considered  by  the  Department. 

"  The  conclusion  is  icached  that  the  (ireat  Lakes,  whose  waters 
separate  the  Lniteil  States  from  the  British  Dominion  of  Canada 
i'lc  wholly  territorial,  and  that  the  territorial  jurisdiction  of  the 
rcsjx'ctive  sov(>rcignties  extends  and  is  exercisable  to  the  boundary 
which,  by  treaty,  has  i)een  established  between  them  as  running 
ihruugli   the  middle  of  said  lakes.     This  Government  can  neither 


§  137.]  THE    GREAT    L'AKES.  673 

claim  nor  admit  that  in  the  centre  of  these  hikes,  on  either  side  of  the 
ireaty  boundary  and  up  to  a  distance  of  one  marine  league  from 
shore,  there  can  be  an  area  of  '  high  seas '  in  the  determination  of  a 
question  such  as  is  presented. 

*•  It  is  true  that  by  a  recent  decision  of  the  Supreme  Court  (two  of 
the  justices  vigorously  dissenting)  it  has  been  held  that  the  great 
Lakes  are  *  high  seas,'  within  the  meaning  of  a  statute  of  the  United 
States  giving  the  Federal  courts  jurisdiction  over  certain  crimes  com- 
mitted upon  American  vessels  *  on  the  high  seas  and  out  of  the  juris- 
diction of  any  particular  State.'  The  '  particular  State  '  so  referred 
to  has  long  been  settled  to  mean  one  of  the  States  of  the  Union  and 
not  a  foreign  country. 

"  In  the  case  where  this  opinion  was  delivered  the  crime  over  which 
jurisdiction  was  assumed  under  the  crimes  act  was  committed  on  a 
vessel  in  waters  conceded  by  all  the  court  to  be  within  the  territorial 
limits  of  Canada,  and  it  has  several  times  been  held  by  the  United 
States  Sujjreme  Court  that  the  waters  of  the  ocean  within  three  miles 
of  the  coast  of  a  foreign  country,  and  hence  undoubtedly  within  its 
jurisdiction,  are  nevertheless  high  seas  within  the  meaning  of  our 
Federal  crimes  act. 

"  Conceding,  then,  that  the  Great  Lakes  (including  Lake  Michi- 
gan, which  lies  wholly  within  the  boundaries  of  the  United  States) 
are  *  high  seas  '  within  the  meaning  of  our  Federal  crimes  act,  it  by 
no  means  follows  that  those  waters  are  *  high  seas '  as  regards  terri- 
torial rights  of  the  sovereignties  which  own  their  shores. 

"  At  the  time  when  the  ITnited  States  achieved  independence  the 
Great  Lakes  belonged  exclusively  to  Great  Britain.  No  other  nation 
had  any  rights  in  or  over  them.  By  the  treaty  of  peace  of  1783  the 
lakes  were  divided  between  the  contracting  parties  and  the  boundary 
fixed  as  running  through  the  middle  of  the  lakes  and  of  the  water- 
ways connecting  them.  The  L^nited  States  and  Great  Britain  thus 
shared  thenceforth,  to  the  exclusion  of  any  claim  whatsoever  of  a 
third  nation,  the  territorial  sovereignty  over  the  lake  waters  which 
had  theretofore  been  wholly  British,  and  it  was  competent  for  the 
two  countries  to  treat  Avith  each  other  in  respect  to  their  relative 
rights  in  th<)s<»  lakes  without  encroaching  on  any  possible  right  of 
another  country. 

"  This  was  in  fact  done  in  tlie  treaty  of  AVashington  of  1871, 
Ashereby  Lake  Michigan,  which  is  wholly  within  the  exclusive  terri- 
torial domain  of  the  United  States,  was  open  to  navigation  by  British 
subjects,  in  consideration  (as  appears  from  the  statements  of  the 
negotiating  connnissioners.  Foreign  Relations.  1871.  p.  513)  for  in- 
creased {)rivileges  in  respect  to  the  St.  Lawrence  Kiver  and  the  Cana- 
dian canals  offered  by  Great  Britain, 

II.  Doc.  551 13 


-674  NATIONAL    JURISDICTION:    TERRITORIAL    LIMITS.  [§137. 

••  Bv  the  treaty  of  1788,  tlie  two  nations  fixed  a  certain  boundary 
line  through  tlie  hdves  and  the  connecting  waterways,  each  claiming 
for  itself  and  conceding  to  the  other  territorial  jurisdiction  in  the 
waters  on  the  respective  sides  of  the  boundary  line  up  to  the  line 
itself. 

"  By  the  treaty  of  1704,  the  right  of  connnon  navigation  of  the 
boundary  waters  was  reciprocally  stipulated  in  favor  of  the  citizens 
and  subjects  of  the  two  countries.  By  the  treaty  of  1871,  these  rights 
of  navigation  and  passage  were  extended  and  defined  as  regards  the 
several  waterways  of  connnunication  and  access  lying  Avholly  within 
the  territory  of  the  respective  parties. 

"  The  rights  so  shared  by  convention  relate  to  navigation  and 
transit  alone.  As  to  other  uses  or  purposes  the  two  countries  have 
uniformly  reserved  and  asserted  territorial  jurisdiction  over  their 
respective  treaty  waters. 

'*  A  recent  recognition  of  this  jurisdiction  is  contained  in  the 
reciprocal  legislation  of  the  United  States  and  Canada  whereby  each 
country  gives  wrecking  i)rivileges  in  the  lakes  and  waterways  on  its 
^ide  of  the  line  to  vesels  of  the  other  country. 

•■  The  right  of  fishing  cannot  by  any  })arity  or  stretch  of  reasoning 
be  deenied  a  j)art  of  the  stipulated  rights  of  navigation  and  transit: 
and  it  has  not,  by  convention  or  reciprocal  legislation  in  the  nature 
of  a  treaty,  been  created  in  favor  of  the  citizens  of  either  country  fish- 
ing in  the  Avaters  of  the  other. 

'*  It  is  assuuied  that  the  Canadian  authorities  act  in  accordance  Avith 
the  law  of  the  Dominion  in  i)r()hibiting  unlicensed  fishing  on  the 
Canadian  side  of  the  l)()undarv  line  running  through  the  Great  Lakes 
as  fixed  by  existing  treaty.  That  no  corresponding  prohibition  has 
been  established  on  thi^  side  under  Federal  or  State  laws  in  no 
wise  affects  the  competence  of  Canada  to  legislate  for  the  regulation 
aud  protection  of  its  fisheries  on  its  side  of  the  boundary.  The  right 
of  the  l'nit<'d  States  to  so  legislate  is  ecjually  complete. 

••  The  right  of  fishing  in  the  waters  of  the  lakes  or  in  the  connecting 
waterways  thereof  depends  merely  upon  the  local  law,  and  this  (tov- 
ernment  camiot  complain  against  the  action  of  Canada  in  excluding 
our  citizens  from  unlicensed  fishing  on  the  Canadian  side  of  the  con- 
ventional boundary.  e\en  though  at  a  greater  distance  than  three 
miles  from  shore.  .  .  . 

"Any  cases  of  Canadian  interference  with  the  operations  of  Amer- 
ican citizens  taking  fish  within  the  territorial  waters  of  the  United 
States  will  be  })romptly  considered  aiul  pressed  uj)on  due  establish- 
ment of  the  fact.  In  this  regard  the  question  is  not  novel,  similar 
cases  having  occurred  in  the  past,  especially  in  the  narrow  waterways 
where  tlie  location  of  the  boinidarv  admitted  of  little  doubt,  and 
having  been  disposed  of  upon  the  ascertained  facts.     That  the  Do- 


§  188.]  ^'IIE    GREAT    LAKES.  6? 5 

iiiinioii  authorities  have  not  heretofore  systeinaticaliv  asserted  their 
fisher}'  rights  in  the  more  o^^en  waters  of  the  hikes  is  siqjposed  to  be 
because  uiltil  this  3^ear  no  adequate  patrol  force  had  been  established." 

Mr.  Tilil,  Acting  Sec.  of  State,  tu  Messrs;*.  LaugUlhi,  EwfU  &  tloupt.  May 
2;?,  1S04,  11)7  MS.  Doin.  Let.  118. 

S&e,  to  the  snme  eft'oct,  Mr.  (iresiiain.  Set-,  of  St<ite,  to  Mr.  I  looker,  Jaii. 
2,  18!)r»i  saying:  "The  Department  concnrs  in  the  view  expressed  by 
the  Canadian  .Judge  (McDougall;  in  the  case  of  the  .Vnieriean  vessel 
Grace)  that  the  hdce  waters  on  either  side  of  the  interniitional  bound- 
ary line  are  under  the  exchisive  numicipai  jurisdiction  of  the  respec 
five  conntries."     (200  MS.  Doni,  Let.  121.) 

See.  also,  Mr.  tJhl,  Act.  Sec.  of  State,  to  Mr.  Springer.  Feb.  8.  1895,  200 
MS.  Doni.  Let.  .ll.*^.  Also.  Mr.  Fish.  Sec.  of  State,  to  Mr.  Canipavl. 
June  4.  1800.  81  .MS.  Doni.  Let.  21."):  Mr.  Hay.  Sec.  of  State,  .to  Mr. 
Alexander,  :Miiy  11.  1000.  24.")  MS.  Doni.  Let.  T)?. 

An  American  fisherman  is  not  entitled  to  damages  for  the  seizure  of  his 
nets  by  the  Canadi.-ui  authorities,  where  {lart  of  the  nets  was  in 
British  waters.  CSlr.  I'>ayard.  Sec.  of  State,  to  Mr.  Chipman.  M.  C, 
Feb.  2.  1880.  17  MS.  Report  Rook.  .'527.) 

"The  international  boundary  in  the  river  iSt.  Lawrence]  channel  is  not 
'imaginary.'  as  yon  say.  Imt  lias  l)een  surveyed  and  charted:  and 
on  the  British  side  of  that  line  the  Canadians  have  a  right  to  enforce 
such  fish  and  g.inie  laws  as  m:iy  be  enacted  in  the  Dominion.  The 
circumstance  that  no  corresponding  fish  and  game  laws  are  enforced 
on  the  American  side  of  the  boundary  does  not  affect  the  Canadian 
rights  in  the  premises."  (INIr.  Fhl.  Acting  Sec.  of  State,  to  Mr. 
Payne.  March  27.  1805.  201  MS.  Dom.  Let.  :]04 :  affirmed  by  Mr. 
Gresham.  Sec.  of  State,  to  Mr.  Payne,  April  18.  1895,  201  MS.  Dom. 
Let.  553.) 

(."!)     NAVIGATION. 
S     188. 

In  respect  of  the  right  of  navigation,  the  lakes  that  separate  the  two 

countries,  i.  e.,  Lakes  Ontario,  Erie,  Huron,  and  Su- 

Lakes    Ontario,    pppJor,  and  their  water  communications,  are  treated 

Erie,  Huron,  .    ,  ,.         ,  ,  ,     .  i     t      j.     i   •  i^    -.. 

^  „        .  as  international  waters,  heuii):  dedicated  m  perpetuity 

and  Superior.  .         .  ^  .  ' 

to  the  common  navigation  of  all  the  inhabitants. 

It  may  be  superfluous  to  reniiu-k  that  this  common  right  of  navi- 
gation does  not  embrace  the  respective  coasting  trade  of  the  con- 
tracting parties,  a  limited  participation  in  which  was  reciprocally 
conceded  by  Article  XXX.  of  the  treaty  of  Washington  of  May  8, 
1871.  This  article  was  terminated  by  notice,  in  conformity  with  the 
stipulations  of  the  treaty,  July  1.  1885. 

The  act  of  C(mgress  of  March  ?■>.  1851  (9  Stat.  0.^5),  limiting  the 
lial)ility  of  ship  owners  in  certain  cases,  in  terms  declared  that  its  pro- 
visions should  not  ai)ply  to  vessels  used  in  ''  rivers  or  inland  naviga- 
tion." It  was  held  that  this  exce})tioii  did  not  embrace  a  ])ropeller 
enrolled  and  licensed  for  the  coasting  trade  between  places  in  ditferent 


()7<i  NATIONAL    JURTSDU'TTON  :    TERRITORIAL    LIMITS.  [§139. 

States  on  the  (ircat  Lakes  and  actually  engaged  in  a  voyage  from 
Buti'alo  to  Detroit,  sneli  navigation  not  being  jjroperly  regarded  as 
••  iidand  navigation."  The  (ireat  Lakes,  said  the  court.  "  form  a 
boundary  "  between  a  foreign  country  and  the  United  States  "  for  a 
distance  of  some  l.-JOO  miles,  and  are  of  an  average  width  of  at 
least  100  miles.-  .  .  .  The  aggregate  length  of  these  lakes  is  over 
1. .')()()  miles,  and  the  area  covered  by  their  waters  is  said  to  be 
>ome  !>0.000  square  miles.  .  .  .  The  waters  of  these  lakes,  in  the 
aggregate,  exceed  those  of  the  P)altic.  the  Caspian,  or  the  Black  Sea. 
and  ap|)roach  in  magnitude  those  of  the  Mediterranean.  They  exceed 
those  of  the  Red  Sea.  the  North  Sea  or  German  Ocean,  the  Sea  of 
Marmora,  and  of  Azotf.  and.  like  the  lakes,  all  of  these  seas,  Avitli  the 
exception  of  the  North  Sea.  ar<'  tideless." 

Moore  r.  Aincricaii  'l'rMns])ortjitioii  Co..  l-'4  IIow.  1.  37. 

Uy  Article  XXVI IL  of  the  treaty  of  Washington  of  May  8.  ISTl, 
it  was  stipulated  that  the  navigation  of  Lake  Michi- 
igan.  ^_^^^^  Avhieh  lies  wholly  within  the  jurisdiction  of  the 
United  States,  should,  for  the  term  of  years  mentioned  in  Article 
XXXIII.  of  the  treaty.  "  be  free  and  oiien  for  the  })urposes  of  com- 
merce to  the  subjects  of  Her  Britannic  Majesty,  subject  to  any  laws 
and  regulations  of  the  United  States  or  of  the  States  bordering 
tlu'i-eon  not  inconsistent  with  such  privilege  of  free  navigation."" 

By  Article  XXXIII.  it  was  provided  that  Articles  XVIII.-XX\\, 
which  related  to  the  fisheries,  and  Article  XXX..  which  granted  to 
the  citizens  of  each  counti-y  a  certain  participati(m  in  the  coasting 
trade  of  the  othei".  should  i-emain  in  force  ten  years  after  they  should 
come  into  operation,  and  fui'ther  till  the  expiration  of  two  years  after 
eithei-  |)arty  >hould  haxc  given  notice  to  the  other  of  its  wish  to  ter- 
minate them. 

July  '2.  1S,S;5.  the  United  States,  pursuant  to  a  joint  resolution  of 
Congress  gave  notice  of  the  termination  of  Articles  XVIII. -XXV., 
inclusive,  and  .Vrticle  XXX.  of  the  treaty  of  May  S.  1871 :  and  it  was 
agreed  that  Article  XXXII.  fell  with  them,  it  l)eing  wholly 
dependent  ui)on  them.''     No  mention  was  made  of  Article  XXVIII.'' 

(4)     WAIKK    (OM  M  IMCATIO.NS. 

Ill  tlie  discussion  of  the  boundary  from  Lake  Superior  to  the  Lake       I 
of  the  Woods,  by  the  connnissioners  under  Article  VII.  of  the  treaty 


"  Sic  .\rt.  I\'.  of  11h>  roci]»rocit.v  treaty  of  1S.14. 

'■  For.  Kel.  ISS.-,.  41:'..  4:'.."..  441.  4.~>1.  4(i4  :  For.  Itel.  1,S,S4.  214-21.".  See.  also.  II. 
i:.\.  !>oc.  i.',4.  r>(»Coim.  l  sess. 

'  See  siicecli  of  .Mr.  Ilitt.  I  louse  of  Ueiireseiitatives,  Sept.  4.  1888,  Coug.  Record, 
r>o  foil!.'.  1  sess.  XIX.  8272.  8274-8275. 


§  139.J  THE    GREAT    LAKES.  677 

of  Ghent,  the  British  commissioner  offered  to  enter  and  ascend  the 
Pigeon  River  and  jiroceed  by  a  certain  water  connnunication  to  Lake 
Namekan.  pi-orided  thai  tJte  Crrand  Porlage  xhoiihl  remain  free  to 
hoth  pdit'tes.  The  (irovernment  of  tlie  United  States  hekl  that  the 
powers  of  the  American  commissioner  nnder  the  treaty  did  not  au- 
thorize him  to  enter  into  such  an  engagement,  but  added  : 

'•'"Any  stii^uhition  that  the  (irand  Portage  should  remain  free  to  both 
parties  is.  moreover,  unnecessary  according  to  the  principles  which 
the  Government  of  the  United  States  considers  applicable  to  the  sub- 
ject. Agreeably  to  these  principles,  both  parties.  Great  Britain  and 
the  United  States,  have  the  right  of  navigation  from  the  highest 
navigable  source  of  the  I^akes  to  the  sea,  through  all  the  water  com- 
munications by  which  they  are  connected  with  one  another,  or  with 
the  ocean.  To  enter  into  a  stipulation  by  which  that  right  shall  be 
affirmed  in  regard  to  any  particular  link  of  that  chain,  would  there- 
fore not  oidy  be  superfluous,  but  might  bring  into  (|uestion  the  sound- 
ness of  those  principles  in  their  application  to  other  parts  of  the  same 
chain." 

Mr.  Clay.  Sec.  of  State,  to  :Mr.  Porter.  Nov.  i:],  1S2().  21  :MS.  Doin.  Let. 
422. 

A  (luestion  of  a  diftVrcut  kind  was  referred  to  in  a  letter  of  Mr.  Buchanan. 
Secretary  of  State,  to  the  governors  of  the  States  of  New  York  and 
Vermont,  conmiunicatin!?  to  them  a  fO]iy  of  a  note  and  accoini)anying 
memorial  received  at  the  Department  of  State  from  the  British 
charge  d'affaires  ad  interim  at  Washington,  remonstrating  on  l)ehalf 
of  certain  inhabitants  of  Canada  against  the  placing  of  any  impedi- 
ment in  a  position  to  interrui>t  the  navigaticm  of  the  waters  connect- 
ing Missis(iu()i  Bay  with  the  River  Richelieu.  The  Missisipioi  Bay, 
it  may  he  ohserved,  lies  in  Canada  on  the  east  and  the  Richelieu  River 
on  the  west  of  a  tongue  of  land  that  extends  down  into  Lake  Cham- 
plain  aliout  a  sixth  of  a  degree  of  latitude  helow  the  line  that  divides 
the  States  of  New  York  and  Vermont  from  the  British  possessions,  so 
that  it  was  necessary  to  roiuid  this  ])oint  in  T'nited  States  waters  in 
order  to  navigate  between  the  river  and  the  bay.  Mr.  Buchanan,  in 
connuunicating  the  cojiy  of  the  note  and  memorial,  said:  "Although 
the  Federal  (Jovernment  does  not  admit  the  right  of  the  Canadian 
authorities  to  interfere  in  this  matter,  yet  I  have  deemed  it  due  to 
our  amicable  relations  with  (Jreat  Britain  to  transmit  this  applica- 
tion to  your  excellency.  This  has  been  done  under  the  conviction 
it  will  I'eceive  that  degree  of  consideration  to  which  it  may  be  .jiistl.v 
entitled,  pi'oceeding,  as  it  dot's,  from  the  subjects  of  a  friendly  i)ower 
in  a  neighboring  province."  (Mr.  P>u<'hanan.  Sec,  of  State,  to  the 
governors  of  New  York  and  Vermont,  April  7,  1848.  30  MS.  Dom.  Let. 
40.'), ) 

By  Article  VIT.  of  the  Webster-Ashl)urton  treaty  of  August  9, 
184:2,  it  is  "  agreed  that  the  channels  in  the  river  St.  Lawrence  on  both 
sides  of  the  Long  Sault  Islands  and  of  Barnhart  Island,  the  channels 
in  the  river  Detroit  on  both  sides  of  the  island  Bois-Blanc,  and  be- 


G78  NATTONATi    JURISDICTTON  :    TERRITORIAL    LIMITS.  [§140. 

t\vo(Mi  that  isliind  mikI  both  tho  Aincricau  and  Caniidiau  shores,"  and 
all  tho  scvi'i'al  channels  and  j)assa<i;es  hi'tween  the  varions  ishmds  lyin<5 
near  the  jnnction  of  the  river  St.  Clair  with  the  hike  of  that  name, 
shall  \)v  ecpially  free  and  open  to  the  ships,  vessels,  and  boats  of  both 
parties:  "  while  by  Article  II.  of  the  same  treaty  it  is  dechired  to  be 
"  nnderstood  that  all  the  water  conunnnications  and  all  the  usual  port- 
ages al()n<;  the  line  from  Lake  Superior  to  the  Lake  of  the  Woods,  and 
also  (Irand  Portaire,  from  the  shore  of  Lake  Superior  to  the  Pigeon 
River,  as  now  actually  used,  shall  be  free  and  open  to  the  use  of  the 
citizens  and  subjects  of  both  countries." 

(5)    USK    OK    CANALS. 

§   140. 

By  Article  IV.  of  the  reciprocity  treaty  of  1854  the  right  to  navi- 
Treaty  stipula-    gate  the  canals  in  Caiuula  used  as  part  of  the  water 
tions.  communication  bewteen  the  (iivat  Lakes  and  the  At- 

lantic Ocean  was  temporarily  secured  to  the  in.habitants  of  the  United 
States;  while  the  (Jovernment  of  the  United  States  engaged  to  urge 
the  State  governments  to  permit  British  subjects  to  use  the  several 

"  In  .Tune,  1805,  the  American  tug  Grace  A.  RucJlc,  while  towing  a  scow  loaded 
with  gai'bage  from  Detroit  to  a  dumping  place  in  Lake  Erie,  was  arrested  by 
Canadian  oflicials  at  a  point  in  Detrt)it  Kiver,  on  the  liritish  side  of  the  boiuid- 
iiry.  lietwecn  the  island  Bois-lilanc  and  the  Canadian  shore,  and  was  taken  to 
Amhersthurg,  in  the  township  of  Maiden.  Pi-ovinee  of  Ontario,  where  the  master 
iuid  crow  were  eventually  charged  with  bringing  a  scow  loaded  with  garbage 
into  the  towushij)  of  Maiden,  and  on  this  charge  were  tried,  convicted  and 
iincd.  "It  is  clear  that  under  the  treaty,  which  opens  the  Canadian  as  well 
as  the  American  waters  of  the  river  to  American  navigation  at  this  point, 
the  mere  ])assage  of  a  boat  loaded  with  garl)age  through  that  part  of  the 
tdwnshii)  of  Maiden  which  covers  the  open  channel  of  the  river  is  not  a  viola- 
tion of  the  municipal  health  laws  or  regulations  of  that  township.  .  .  .  The 
st()i)page  of  the  garbage-laden  barge  and  the  conveyance  of  it  into  the  harbor  of 
Andierstburg  was  the  work  of  Canadian  oflicials,  whose  forcible  ijitervention 
prevented  the  ]i;iss;ige  of  the  garbage  onward  to  its  original  and  lawful  destina- 
tion." (.Mr.  Olney.  Sec.  of  Stati',  to  Mr.  Hayard,  amb.  to  England,  April  14, 
IMM;,  .MS.  Inst.  (Jr.  Hr.  XXXI.  421.) 

It  having  been  intimated,  with  reference  to  projected  imjirovements  in  the 
Detroit  Kivei'  by  the  1'.  S.  Engineer  Corps,  that  the  collector  of  customs  at  Am- 
iierstburg  would  seize  ;iny  American  plant  working  in  Canadian  waters,  the 
liritish  ambassador  at  \Vashingtf)n  was  reciuested.  in  view  of  the  pleasant  rela- 
tions which  had  previously  jirevailed  in  the  i)rosecution  of  the  work  and  of  the 
benelit  Canada  would  derive  from  it.  to  obtain  the  permission  of  the  Dominion 
authorities  for  the  improvements  to  be  jiroceeded  with  "along  the  best  lines 
without  regard  to  the  exact  location  of  the  international  Ixmndary  line."  (Mr. 
Cn>sham.  Sec.  of  State,  to  Sir  .7.  rauncefote,  I'.rit.  anib.,  ,Tuly  C,  ISlKi,  MS.  Notes 
to  (Jr.  Kr.  XXII.  :\:/2.) 

See  Webster's  Works,  VI.  :iol-;J52. 


§  140."]  THE    GREAT    LAKES.  679 

State  canals  on  terms  of  etiuality  with  the  inhabitants  of  the  United 
States.     This  treaty  came  to  an  end  in  ISGO. 

'•  Your  letter  of  the  l;5th  instant  respecting  the  claim  of  Owen 
Thorn,  deceased,  has  been  rweived.  In  reply  I  have  to  state  that  the 
claim  was  first  presented  to  the  Department  in  October,  IHiW),  b}'  Mr. 
Thorn,  and  the  papers  were  referred  to  the  law  officer,  who  reported 
as  his  o])inion  that  they  did  not  furnish  the  basis  for  any  reclamation 
upon  the  British  Government,  and  Mr.  'J'horn  was  informed  in  person 
of  the  conclusion  arrived  at  by  the  Department.  By  reference  to  the 
document  enclosed  with  your  letter,  being  House  Ex,  Doc.  Xo.  3,  -ilst 
Cong.  1st  session,  you  will  observe  that  the  detention  of  Mr,  Thorn's 
steamer,  the  Conf/r-es.s.  the  groiind  of  the  claim,  was  caused  by  the 
refusal  of  the  Canadian  authorities  to  allow  the  vessel  to  proceed 
through  the  Canadian  canals  to  Buft'alo.  This  was  after  the  abro- 
gation of  the  reci])rocity  treaty  with  Oreat  Britain,  and  when,  in 
the  ojiinion  of  the  law  officer,  the  Canadian  authorities  had  an  unqual- 
ified I'ight  to  exclude  American  vessels  from  their  canals  without 
assigning  any  reason.  That  they  delayed  for  some  days  in  allowing 
this  privilege  to  the  Congress;,  in  consequence  of  a  misapprehension 
of  the  purpose  of  her  voyage,  did  not,  in  his  opinion,  subject  them 
to  any  liability  they  would  not  otherwise  have  sustained." 

Mr.   Bayju-a.   Sec.  of  State,  to  Mr.   Cumniings.   March  22.   1888.   107   MS. 
Doiii.  Let.  .■>4(». 

By  Article  XXVII.  of  the  treaty  of  Washington  of  May  8,  ISTl, 
(ireat  Britain  engaged  "  to  urge  upon  .  .  .  the  Dominion  of 
Canada  to  secure  to  the  citizens  of  the  United  States  the  use  of  the 
AVelland,  St.  Lawrence,  and  other  canals  in  the  Dominion  on  terms  of 
equality  with  the  inhabitants  of  the  Dominion."  while  the  United 
States  engaged  to  grant  to  British  subjects  the  use  of  the  St.  Clair 
Flats  Canal  '"  on  terms  of  equality  with  the  inhabitants  of  the  United 
States,''  and  further  "  to  urge  upon  the  State  governments  to  secure 
to  the  subjects  of  Her  Britannic  ^lajesty  the  use  of  the  several  State 
canals  connected  with  the  navigation  of  the  lakes  or  rivers  traversed 
l)v  or  contiguous  to  the  boundary  line  .  .  .  on  terms  of  equality 
with  the  inhabitants  of  the  United  States." 

The  ratifications  of  the  treaty  were  exchanged  June  17,  1871.  On 
till'  --'th  of  the  following  Xovember  the  President  addressed  the 
governors  of  the  States  of  Xew  York,  Indiana,  Illinois,  Michigan, 
Ohio.  Pennsylvania,  and  Wisconsin,  calling  their  attention  to  Article 
XXVII.  and  urging  appropriate  action  thereunder."  In  1874  the 
British  minister  complained  that  Canadian  vessels  were  not  permitted 
to    use   the    Champlain    Canal    from    Whitehall    to    Albany,    X.    Y. 


oFor.  Hel.  1871,  Tuil. 


(>80  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  140. 

Upon  investigation  it  appeared  that  the  State  of  New  York  gave 
Britisli  subjects  equal  rights  and  privileges  with  American  citizens  in 
navigating  all  the  canals  of  the  State."  Further  correspondence,  not 
printed,  disclosed  that  the  cause  of  the  complaint  was  certain  customs 
regulations,  with  regard  to  which  the  Treasury  Department  issued 
instructions  which  were  satisfactory  to  the  Canadian  government.'' 

"  Referring  to  previous  correspondence  upon  the  subject  of  the 
navigation  of  canals  of  the  United  States  by  Canadian  vessels,  under 
Article  XXVIT.  of  the  treaty  of  Washington,  I  have  now  the  honor 
to  inform  you  that  I  am  informed  by  the  Secretary  of  the  Treasury 
that  instructions  have  been  issued  to  the  collector  of  customs  at  Platts- 
burg.  New  York,  to  allow  Canadian  barges  and  other  vessels  laden 
with  imported  goods  to  pass  that  port,  on  a  clearance  to  Albany,  or 
to  any  port  intermediate  betAveen  Plattsburg  and  Albany,  under  such 
conditions  and  regulations  as  would  govern  the  navigation  of  Ameri- 
can barges  or  vessels  coming  from  Canada,  under  section  3102  of  the 
Revised  Statutes,  or  under  such  regulations  as  Avould  apply  to  foreign 
vessels  generally  when  importing  foreign  cargoes  under  section  4347 
of  the  Revised  Statutes,  but  without  regard  to  the  several  provisions 
in  this  section  which  apply  especially  to  imported  goods  transported 
in  bond.  T  am  further  informed  that  the  collector  has  been  instructed 
to  allow  free  transit  to  all  return  cargoes  shown  by  the  manifests  of 
Canadian  vessels  to  be  destined  for  Canada. 

"  It  is  further  stated  that  instructions,  similar  in  tenor  and  object 
to  those  addressed  to  the  collector  at  Plattsburg,  will  be  given  to  the 
collectors  of  customs  at  Buffalo  and  Oswego,  Xew^  York,  and  Bur- 
lington. Vermont,  and  that  the  surveyor  of  customs  at  Albany  and 
the  deputy  collector  at  Troy,  Xew  York,  will  be  notified  of  these 
orders." 

Mr.   Fish,    See.  of   State,   to   Sir   Edward   Thornton,   Brit,   min.,   June  7, 
1870.  MS.  Notes  to  Great  Britain.  XVII.  179. 

In  1805  the  United  States  and  Canada  each  appointed  three  com- 
missioners to  confer  on  the  question  of  the  feasibility  of  building 
such  canals  as  should  enable  vessels  engaged  in  ocean  commerce  to 
pass  to  and  fro  between  the  Great  Lakes  and  the  Atlantic  Ocean. 
This  action  was  taken  on  the  initiative  of  the  United  States  under 
an  act  of  Congress  approved  March  2.  1895. 

For.   Kel.   1895.   I.   705-7(17 :   i-eport  of  Mr.   Olney,    Sec.  of  State,  to  the 
President.  Dee.  7,  189(5.  For.  Kel.  ISOC,  Ixxiv. 


"  For.  Rel.  1S75,  I.  G42,  040.  et  seq. 

«<  Mr.  Foster,  Sec.  of  State,  to  Mr.  Spaulding,  A.s.sist,  Sec.  of  Treas.,  Sept.  10, 
1892,  188  MS.  Dom.  Let.  211. 


§  140.]  THE    GREAT    LAKES.  68l 

In  1888."  and  again  in  1891,  representations  were  made  bv  tlu^ 
Question  as  to  United  States  that  the  stipulated  equality  in  the  use 
tolls.  of    the    canals    was    denied    in    Canada.      The    tolls 

charged  on  grain,  flour,  and  certain  other  articles  passing  through 
the  Welland  Canal  amounted  to  '20  cents  a  ton,  but  for  some  years 
by  an  annual  order  in  council  issued  before  the  ojjening  of  lake 
navigation  a  rebate  of  18  cents  a  ton  was  granted  on  grain  carried 
to  Montreal  or  points  east  thereof.  The  effect  of  this  system,  which 
violated,  as  the  United  States  maintained,  the  stipulated  equality, 
was  aggravated  by  the  ultimate  denial  of  any  rebate  on  cargoes 
transshipped,  as  often  was  necessary,  for  passage  through  the  canal 
from  larger  to  snuiller  vessels  if  the  transfer  was  made  in  a  United 
States  port.  On  April  4,  1892,  a  new  order  in  council  was  issued, 
which,  while  fixing  the  canal  tolls  at  20  cents  a  ton  on  freight  of  all 
kinds,  allowed  a  rebate  of  18  cents  on  wheat,  Indian  corn,  pease, 
I'arley,  rye,  oats,  flaxseed,  and  buckAvheat  originally  shipped  and 
actually  carried  to  Montreal  or  any  port  east  thereof  in  case  such 
|)roducts  were  exported,  and  provided  that  the  right  to  the  rebate 
should  not  be  lost  by  intermediate  transshipment,  if  it  took  place  in 
Canada.''  By  another  order  in  council,  dated  April  11,  1890,  and 
mentioned  by  the  United  States  as  a  discrimination,  the  toll  on  car- 
goes hound  eastward  was  reduced  from  20  cents  to  10  cents  a  ton, 
while  the  full  rate  was  continued  on  cargoes  Ixjund  westward. 

The  Canadian  government  argued  (1)  that  its  orders  in  council, 
as  they  applied  to  Canadian  and  American  ressels  alike,  did  not 
infringe  the  treaty,  and  (2)  that,  as  Article  XXX.  of  the  treaty  of 
Washington,  granting  a  reciprocal  participation  in  special  coasting- 
trade  and  bonded-transit  privilege^,  expressly  authorized  the  United 
States  to  suspend  those  privileges  in  case  Canada  should  deny  the 
equal  use  of  the  canals  under  Article  XXVII. .  and  as  Article  XXX. 
had  been  terminated  on  notice  given  by  the  United  States,  the  agreed 
penalty  for  any  discrimination  which  might  exist  had  already  l)een 
exacted.^  The  Canadian  government  proposed,  however,  as  a  com- 
promise, to  abolish  all  rel)ates  on  condition  that  the  free  and  equal 
use  of  the  Sault  Ste.  Marie  Canal  should  be  maintained,  and  that 
Article  XXX.  of  the  treaty  of  Washington  should  be  restored.'* 

The  United  States  replied  (1)  that  the  treaty  guaranteed  equality 
of  treatment  not  merely  to  ressels  of  the  United  States,  but  also  to 
their  citizens;   (2)  that  this  equality  was  violated  by  the  system  in 


a  For.  Hel.  1888.  I.  81.3.  81<>.  824-82."..     !^ee.  also,  special  message  of  President 
Cleveland  to  Congress,  Aug.  28.  1888.  II.  Hx.  Doc.  4.S4,  50  Cong.  1  sess.  7. 
f>  For.  Hel.  18'.»2.  277,  278-281,  282,  283,  21)4. 
r  Id.  277.  278-281. 
d  Id.  280-287,  328. 


()82  NATIONAL    .TURTSDIOTION  :    TERRITORIAL    LIMITS.  [§  140. 

(jiu'stioiK  since  it  r('((iiiiv(l  «jrain  hound  to  Fnitod  States  ports  to  [)ay 
ten  times  as  much  toll  as  grain  hound  to  Montreal,  and  discriminated 
iio^ainst  American  vessels,  ports,  consumers,  and  trade  routes;  (3) 
that  the  termination  of  Article  XXX.  of  the  treaty  of  Washington, 
hy  a  notice  given  in  conformity  with  Article  XXXITI.  thereof,  could 
on  no  theory  he  held  to  have  forever  exhausted  the  power  of  the 
Ignited  States  to  retaliate  for  any  failure  of  Canada  to  observe  the 
engagt'ments  of  Article  XX\'II. :  and  (4)  that  clear  rights  conferred 
on  citizens  of  the  United  States  hy  treaty  could  not  be  purchased  by 
concessions  which  the  same  treaty  did  not  recjuire." 

The  matter  was  submitted  by  the  President  to  Congress,''  and  by 
an  act  approved  flidy  'iG,  1892,  it  was  made  his  duty,  whenever  he 
should  be  satisfied  that  the  passage  through  the  Canadian  canals  of 
vessels  of  the  United  States,  or  of  cargoes  or  passengers  bound  to  a 
United  States  port,  was  prohibited,  made  difficult,  or  burdened  by 
tolls  which,  in  view  of  tlu>  free  j)assage  i)ermitted  to  all  vessels 
thi'ough  the  St.  Marys  Falls  Canal,  he  should  deem  unjust  and  unrea- 
sonable, to  susi)end  by  proclamation  such  free  i)assage  and  imjiose 
tolls,  not  exceeding  a  certain  amount  on  vessels  of  subjects  of  the 
discriminating  government  or  on  cargoes  or  i)assengers  in  transit  to 
its  ports.     A  proclamation,  dated  Aug.  IS,  was  issued  Aug.  20,  ISO'i.'" 

It  sj)ecified  as  the  jiarticular  ground  of  action  the  I'ebate  allowed 
under  the  order  in  council  of  A])ril  4,  18i)'2,  in  favor  of  the  Montreal 
route  and  Canadian  transshipments,  this  ])referential  treatment  con- 
stituting, as  was  declared  in  the  correspondence,  "  the  concrete  condi- 
tion of  disfavor  to  citizens  of  the  United  States,  which  the  President 
was  constrained  to  examine  and  act  upon;"''  and  directed  the  collec- 
tion, after  September  1.  1802,  of  a  toll  of  20  cents  a  ton  "  on  all 
freight  .  .  .  })assing  through  the  St.  Marys  Falls  Canal  in  transit 
to  any  j)oi-t  of  the  Dominion  of  Canada,  whether  carried  in  vessels  of 
the  United  States  or  of  other  nations."' 

"For.  Hel.  1S!)2,  2.">l-l2."i4.  _'7l.'-274.  2S(;-2ST.  :!02-:{(i;!.  .'527.  X\~>. 

6  .Message  of  .Tune  2(».  1S!)2.  S.  Ex.  Doc.  114.  .".2  ('on^^  1  sess..  with  a  report  of 
Mr.  Partridge,  solicitor  of  the  Department  of  State,  showing  the  nature  and 
effect  of  the  various  discriminations;  message  of  .July  1,  1S'.»2.  S.  K.\.  Doc.  114, 
~)2  Cong.  1  sess.,  jiart  2.  with  a  reiH)rt  to  Mr.  .Vdee,  Second  Assistant  Secretary 
of  State,  on  the  same  suhject.  See  also  For.  Rel.  I8!)2.  2S2.  287 ;  and  Memoran- 
(hun  of  The  Canadian  Department  of  Railways  and  Canals.  Nov.  18,  18!)2,  id.  .T28. 

'•  For.  Rel.  1S!>2.  .•'.;!•.». 

''  Id.  :i(»l.  :u>2-:{04. 

'  .\s  to  the  proclamation  of  .Vugust  18,  1S!)2,  see  further.  President  Harrison's 
finnunl  message  of  Dec.  (5.  18!)2.  "  The  American  canals  connected  with  tlie  nav- 
igation of  the  Great  Lakes  and  the  St.  Lawrence  River,  except  as  modified  by  the 
I'residtMit's  proclamation  of  August  28th  last,  are  not  only  enjoyed  by  Cana- 
dians on  e<|ual  terms  with  ,\mei-icaiis,  hut  are  actually  enjoyed  hy  them  free  of 
all  tolls  whatever.     Those  belonging  to  the  Government  of  the  United  States  are 


§  1  +  1.]  THE    GREAT    LAKES.  (l83 

By  a  Canadian  order  in  council  of  Fcbruai'v  i;^,  1893,  it  was  di- 
rected that  ••  for  the  season  of  ISO:')  the  canal  tolls  for  the  passage  of 
the  following  food  i)roducts.  wheat.  Indian  corn,  pease,  barley,  rye, 
oats,  flaxseed,  and  buckwheat,  for  passage  eastward  through  the 
^Velland  Canal  be  10  cents  i)erton;  and  for  jiassage  westward  through 
tlie  St.  Lawrence  canals  only  10  cents  per  ton;  ])aynient  of  the  said 
toll  of  10  cents  per  ton  for  passage  through  the  AVelland  Canal  to 
entitle  these  jjroducts  to  free  passage  through  the  St.  Lawrence 
canals."' 

On  the  strength  of  assurances  that  this  order  was  in  full  substitu- 
tion of  the  e.\i)ired  orders  of  1891  and  1892,  and  involved  the  aban- 
donment of  all  jMovisions  as  to  rebates  oi'  against  transshipped  goods, 
the  President.  February  21,  189;5,  issued  a  proclamation  suspending 
that  of  August  18.  1892." 

Hy  an  ordei-  in  council,  dated  April  IT.  1890.  all  fees  ])reviously 
exacted  from  vessels  navigating  inland  waters,  when  entering  or 
clearing  above  Montival,  were  al)olished.  It  was  stated  that  the 
Canadian  government,  while  maintaining  its  former  contention  that 
cei'tain  charges  exacted  in  United  States  jxirts  from  (^anadian  ves- 
sels constituted  a  discrimination  in  favor  of  United  States  shi})s,  took 
the  action  above  stated  in  order  that  no  cause  for  friction  with  the 
United  States  authorities  in  regard  to  the  matter  should  exist.'' 

(('))     KUhES    OK    NAVIGATION. 
§     Ul. 

February  21.  1895.  Mr.  Gresham,  who  was  then  Secretary  of  State, 
communicated  to  the  British  ambassador  at  AVashington  a  copy  of 
an  act  of  Congress  of  February  8,  1895,  entitled  "An  act  to  regulate 
navigation  on  the  (ireat  Lakes  and  other  connecting  and  tributary 
waters."  The  hope  was  expressed  that  the  Canadian  government 
might  be  disposed  to  adopt  similar  regulations  for  the  government  of 
Canadian  vessels  in  the  waters  in  question.^'  Negotiations  on  the 
su.bject  were  postponed  pending  a  settlement  of  the  general  question 
of  revised  regulations  for  the  prevention  of  collisions  at  sea.'' 

In  a  note  of  June  4.  189f),  Sir  Julian  Pauncefote.  referring  to  the 
expressed  desire  of  the  United  States  that  rules  for  the  navigation  of 

supported  l),v  it.  and  those  bolonj^infl  to  the  State  of  New  York  are  sui)itorted  by 
a  direct  tax  upon  her  pet)ple.  As  to  the  hitter,  see  p.  'AH  of  S.  Ex.  Doc.  114,  .")2 
Coiifi;.  1  sess."  (Mr.  Foster.  Sec.  of  State,  to  Mr.  Spauhllnj:,  Assist.  Sec.  of 
Treas.,  Sept.  IC.  1S!)'_>,  1S,S  MS.  Doni.  Let.  211.) 

"For.  Hel.   1,S!»:?.  ;i2i)-:«1.  -.VM-MO. 

'>  For.  Kei.  ISIKJ,  :{(J4. 

'For.  l{el.   IS!).-,,  L  714-71S,  containing,'  tlie  text  of  the  act. 

d  Id.  711). 


684  NATIONAL    JURISDICTION  :     TP^RRltORIAL    LIMITS.  [§  142. 

the  (iivat  Lakes  should  not  be  postponed  pending  tlie  general  ques- 
tion of  the  revised  regulations  for  the  prevention  of  collisions  at  sea, 
stated  that  Lord  Salisbury  oi>served  that  the  main  difference  betweeil 
the  rules  desired  by  Canada  and  those  desired  by  the  United  States 
had  reference  to  the  (piestion  of  sound  signals  for  use  in  a  fog.  This 
(juestion,  so  far  as  it  concerned  the  high  seas,  had  lately  been  resub- 
mitted by  Her  Majesty's  (lovernment  to  a  connnittee  of  the  House  of 
Connnons.  whose  report  had  just  been  received.  It  would  have  to  be 
carefully  considered,  and  meanwhile  the  board  of  trade  was  unable 
to  form  a  definite  opinion  as  to  the  merits  of  the  conflicting  proposals 
of  Canada  and  the  United  States." 

In  18i)l  the  navigation  of  steamers  on  the  Creat  Lakes  was  gov- 
erned by  the  Congressional  rules  and  regulations  act  of  A})ril  29,  18()4, 
13  Stat.  58,  R.  S.  §  4238,  and,  so  far  at  least  as  to  mancEuvres  in 
American  Avaters,  by  the  [supervising  inspector's  rules  then  in  force. 
The  Revised  International  Regulations  of  1885,  act  of  March  3,  1885, 
23  Stat.  483,  applied  only  to  luivigation  '"  ui)on  the  high  seas  and  in 
all  coast  waters  of  the  United  States,"  an  express  exception  being 
made  of  "'  the  harbors,  lakes,  and  inland  waters  of  the  United  States,''' 
the  term  lakes  including  the  (ireat  Lakes. 

The  New  York   (18!t!»),  17r.  V.  S.  LSI.  1!):{. 

'*  AVe  are  saved,  however,  consideration  of  these  questions  [as  to  the 
respective  duties  of  vessels  navigating  the  Creat  Lakes]  b}^  the  fact 
that  the  signals  and  the  steering  rules  of  the  United  States  and  Can- 
ada are  practically  identical.  This  fact  being  once  established,  the 
duty  of  vessels  of  both  nations  in  meeting  each  other,  either  upon 
American  or  Canadian  waters,  is  easily  understood." 

The  New  York   (l.SltiM.  IT.l  {'.  S.   1ST.  !!»!). 

(7)     \VKKC'KrN(i     I'RIVn.K(iKS. 

^  142. 

"On  the  15th  of  July,  1878,  Mr.  F.  W.  Seward,  Acting  Secretary 
of  wState,  transmitted  to  Sir  Edward  Thornton  a  copy  of  an  act  of 
Congress  approved  June  11>,  1878,  entitled  *An  act  to  aid  vessels 
wrecked  or  disabled  in  the  waters  coterminous  to  the  United  States 
and  the  Dominion  of  Canada." 

"  Mr.  Seward,  in  sul)mitting  said  act  of  Congress  for  the  informa- 
tion of  Tier  Britannic  Majesty's  (lOvernment,  called  attention  to  the 
fact  that  it  could  not  take  effect  until  the  President  should  issue  a 
j)roclamati()n  declai'ing  that  reci])rocal  privileges  would  be  granted  to 

a  For.  lid.   1,S0(),  :{(>.">-:}(;(),  referring?  to  For.  Itel.  1895,  I.  714. 


§  142.]  THE    GREAT    LAKES.  685 

American  vessels  in  Canadian  Avaters,  and  he  therefore  requested  that 
he  might,  at  as  early  a  date  as  might  be  convenient,  be  placed  in  pos- 
session of  the  information  necessary  to  enable  this  (iovernment  to 
carry  the  above-mentioned  act  into  effect  in  accordance  with  its 
provisions. 

"  Sir  P^dward  Thornton,  in  reply  to  Mr.  Seward's  note,  on  the  l^fth 
of  August  1878,  stated  that  no  provision  had  yet  been  made  by  the 
government  of  the  Dominion  of  Canada  for  extending  reciijrocal 
privileges  to  American  vessels,  but  that  the  subject  would  receive  con- 
sideration. Here,  however,  the  matter  appears  to  have  rested,  no 
formal  reply  having. ever  Ijeen  made  to  the  proposal  communicated  to 
Her  Britannic  Majesty's  Government  by  Mr.  Seward. 

''  Meanwhile,  experience  has  shown  that  the  want  of  the  proposed 
reciprocal  arrangement  has  been  the  source  of  much  avoidable  hard- 
ship to  the  interests  of  American  commerce  on  the  Great  Lakes,  and 
that  American  vessels  and  property  have  been  subjected  to  great  and 
unnecessary  losses  and  the  lives  of  our  mariners  to  needless  dangers. 

"  It  is  thought  that  the  adoption  of  the  measure  of  reciprocity  pro- 
posed by  the  act  of  Congress  of  June  19,  1878.  woidd  remedy  the  evils 
in  question,  as  well  as  promote  the  interests  of  good  neighborhood 
and  humanity.  The  President  therefore  is  desirous  that  the  subject 
may  be  resubmitted  to  the  consideration  of  Her  Britannic  Majesty's 
tiovernment  with  the  ho])e  that  some  understanding  may  be  arrived 
at  for  the  nnitual  Ixmefit  of  the  important  interests  concerned." 

Mr.  Ka.viird.  Sec.  of  State,  to  Mr.  West.  Brit,  iiiin..  Feb.  26,  1886,  MS. 
Notes  to  Great  Britain.  XX.  196. 

"  It  is  iiuKh  to  lio  desired  that  some  agreement  should  he  reached  witli 
Her  Majesty's  (ioveniinent  i).y  which  the  damages  to  life  and  property 
on  the  (ireat  Lakes  may  be  alleviatetl  by  removing  or  humanely  regu- 
lating the  obstacles  to  reciprocal  assistance  to  wrecked  or  stranded 
vessels. 

"The  act  of  .Tune  10.  1878.  which  offers  to  Canadian  vessels  free  access 
to  our  iidand  watei's  in  aid  of  wrecked  or  disabled  vessels,  has  not 
yet  beconif  effective  through  concurrent  action  by  Canada."  (Presi- 
dent Cleveland,  annual  message,  Dec.  3.  1888,  For.  Kel.  1881.  I.  p.  xii.) 

By  an  act  of  Congress  of  May  24,  1890,"  it  was  jjrovided  that 
Canadian  Avreckers  might  render  aid  to  "Canadian  or  other  vessels 
and  property,  wrecked,  disabled  or  in  distress "  in  United  States 
waters  contiguous  to  tlie  Dominion  of  Canada,  whenever  the  Presi- 
dent should  proclaim  that  a  reciprocal  privilege  was  extended  by 
Canada  to  American  wreckers  as  to  American  or  other  vessels  and 
proi)erty  in  contiguous  Canadian  waters;  and  it  was  expressly 
declared  that  the  act  should  be  construed  to  apply  to  "  the  AVelland 
Canal,  the  canal  and  improvement  of  the  waters  between  I^ake  Erie 


o-ia  Stat.  120. 


080  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  142. 

and  Lake  Huron,  an^l  to  the  waters  of  the  St.  Marys  River  and 
Canal."  C'anaihi.  on  May  10,  189:2,  passed  a  reciprocal  act,  but  the 
words  ■•  waters  of  Canada  contiguous  to  the  iTnited  States,**  as 
enij)loved  in  it.  were  not  declared  to  ai)ply  to  the  canals  and  other 
watei's  above  mentioned.  It  was  afterwards  ascertained  that  Canada 
did  not  intend  her  law  to  apply  to  the  canals,  since  they  were  not 
"waters  contitjuous  to  the  United  States,"  but  '"were  bounded  on 
both  sides  by  Canadian  territory."  The  United  States,  on  the  other 
hand,  maintained  that  the  canals  connected  with  the  navigation  of  the 
Great  Lakes,  though  they  might  not,  when  lying  wholly  Avithin  one 
country,  be  "  contiguous  waters"  in  the  strictest  sense,  were  incidental 
to  waters  Avhich  were  so  contiguous,  and  were  important  i)arts  of  the 
system  of  waterways  for  Avhich  reciprocal  wrecking  privileges  were 
intended  to  be  secured;  and  in  view  of  the  express  requirements  of 
the  United  States  law  it  was  held  that  the  President's  proclamation 
could  not  issue."  Moreover,  regulations  subsequently  adopted  in 
Canada  for  the  enforcement  of  her  statute  in  the  Welland  Canal 
permitted  American  wreckers  to  aid  only  American  vessels,  and.  by 
omission,  apparently  excluded  the  salvage  of  pro})ei'ty  wrecked.  A 
question  was  also  raised  as  to  whether  an  American  tug  would  l)e 
permitted  to  pull  off  its  own  tow  if  grounded  or  wrecked.'' 

By  the  legislative,  executive,  and  judicial  apjiropriation  act  of 
March  a.  18!)H,  the  act  of  May  i>4,  181)0,  was  amended  by  striking  out 
the  words  ^'  the  Welland  Canal."  «■ 

AVhereas  an  Act  of  Congress  amendatory  of  an  Act  in  relation  to 
aiding  vessels  wrecked  or  disabled  in  the  Avaters  conterminous  to 
the  United  States  and  the  Dominion  of  Canada,  was  approved  May 
24,  1890. — the  said  Act  being  in  the  following  words: — 

"H<'  if  OKK-tcd  hy  the  ISciKftc  (iiid  IIou.sc  of  liepn'.'iciitittlccs  of  the 
l')i/t(<J  Statix  of  Aiiwricd  in  CotK/re^s  asKemhled,  That  an  Act  en- 
titled 'An  act  to  aid  vessels  wrecked  or  disabled  in  the  waters  c(»n- 
terminous  to  the  United  States  and  the  Dominion  of  Canada.'  ap- 
proved .June  uinete<'nth.  eighteen  hundred  and  seventy-eight,  be, 
and  the  same  is  hereby,  amended  so  that  the  same  will  read  as 
follows: 

'■•  *  That  Canadian  vessels  and  wrecking  appurtenances  nuiy  render 
aid  and  assistance  to  Canadian  or  other  vessels  and  property  wrecked, 
disabled,  or  in  distress  in  the  waters  of  the  United  States  contiguous 
to  the  Dominion  of  Canada  :  Prorldcd,  That  this  act  shall  not  take 
effect  until  proclamation  by  tiu'  President  of  the  United  States  that 
the    privilege   of   aiding    American    or    other    vessels    and    proi)erty 


"  For.  \W\.  1S!f_'.  liTT.  2S!).  l".»1.  l>;»2,  'M)A.  ;!0r)-:',09, 

''  Id.  :'.;{i -:',;?."). 

c  For.  \W\.  18t);?,  ;«(j. 


§  142.]  THE    GREAT    LAKES.  687 

wrecked,  disabled,  or  in  distress  in  Canadian  Avaters  contiguous  to 
the  United  States  has  been  extended  by  the  Government  of  the 
Dominion  of  Canada  to  American  vessels  and  wrecking  appliances 
of  all  descriptions.  This  act  shall  be  construed  to  apply  to  the 
Welland  Canal,  the  canal  and  improvement  of  the  waters  between 
Ijake  Erie  and  Lake  Huron,  and  to  the  waters  of  the  Saint  Mary's 
River  and  canal:  And  provided  further.  That  this  act  shall  cease 
to  be  in  force  from  and  after  the  date  of  the  proclamation  of  the 
l*resident  of  the  United  States  to  the  effect  that  said  reciprocal 
privilege  has  been  withdrawn,  revoked,  or  rendered  inoperative  by 
the  said  Government  of  the  Dominion  of  Canada ;  ' 

And  Whereas  an  act  of  Congress  making  appropriation  for  the 
legislative,  executive  and  judicial  expenses  of  the  Government  for  the 
fiscal  year  ending  June  thirtieth,  eighteen  hundred  and  ninety-four, 
and  for  other  purposes,  approved  March  3,  1893,  further  amended 
the  act  of  May  24,  1890,  as  follows: 

•'  That  an  act  approved  May  twenty-fourth,  eighteen  hundred  and 
ninety,  entitled  'An  act  to  amend  an  act  entitled  ''An  act  to  aid  vessels 
wrecked  or  disabled  in  waters  coterminous  to  the  United  States  and 
the  Dominion  of  Canada,'' '  approved  June  nineteenth,  eighteen 
hundred  and  seventy-eight,  be,  and  is  hereby,  amended  by  striking 
out  the  words  '  the  AVelland  Canal.'  " 

And  "Whereas  by  an  Order  in  Council  dated  May  17,  1893,  the 
Government  of  the  Dominion  of  Canada  has  proclaimed  an  act  en- 
titled "An  act  respecting  aid  by  United  States  wreckers  in  Canadian 
waters,"  to  take  effect  June  1,  1893,  said  act  reading  as  follows: 

"  Her  Majesty,  by  and  with  the  advice  and  consent  of  the  Senate 
I'ud  House  of  Commons  of  Canada,  enacts  as  follows: 

"  1.  United  States  vessels  and  Avrecking  appliances  may  salve  any 
property  wrecked,  and  may  render  aid  and  assistance  to  any  vessels 
wrecked,  disiibled,  or  in  distress,  in  the  waters  of  Canada  contiguous 
to  the  Ignited  States. 

*■  2.  Aid  and  assistance  include  all  necessary  towing  incident 
thereto. 

"  3.  Nothing  in  the  customs  or  coasting  laws  of  Canada  shall  re- 
strict the  salving  operations  of  such  vessels  or  wrecking  appliances. 

•'  4.  This  act  shall  come  into  force  from  and  after  a  date  to  be 
named  in  a  proclamation  by  the  Governor-General,  which  proclama- 
tion may  be  issued  when  the  Governor  in  council  is  advised  that  the 
])rivilege  of  salving  any  property  wrecked  or  of  aiding  any  vessels 
wrecked,  disabled,  or  in  distress,  in  United  States  waters  contiguous 
to  Canada,  will  be  extended  to  Canadian  vessels  and  wrecking  ap- 
pliances to  the  extent  to  which  such  privilege  is  granted  by  this  act 
to  United  States  vessels  and  wrecking  appliances. 


G88  NATIONAL    .TUUTISDK'TION  :    TERRITORIAL    LIMITS.  [§142. 

••  r».  This  act  shall  cease  to  he  in  force  from  and  after  a  date  to  be 
named  in  a  i)roclamation.  to  he  issued  hy  the  (irovernor-Cireneral  to 
the  eli'ect  (hat  the  said  recijjrocal  i)rivilege  has  been  withdrawn, 
revoked  or  I'endered  inoperati\'e  with  respect  to  Canadian  vessels 
(  r  wreckin<r  appliances  in  United  States  water  contiguous  to 
Canada :  " 

And  Whereas  said  proclamation  of  the  Governor-Oeneral  of 
Canada  was  connnunicated  to  this  (Jovernment  by  Her  Britannic 
Majesty's  Ambassador  on  the  '2d  day  of  June  last : — 

Now.  TiiKUKKOHK.  being  thus  satisfied  that  the  privilege  of  aiding 
American  or  other  vessels  and  })r()j)erty  wrecked,  disabled,  or  in 
('istress.  in  Canadian  waters  contiguous  to  the  United  States  has  been 
extended  by  the  (iovernment  of  the  Dominion  of  Canada  to  American 
vessels  and  wrecking  appliances  of  all  descriptions,  I,  (ikovek  Clkvp:- 
i.ANO,  President  of  the  United  States  of  America,  in  virtue  of  the 
authority  conferred  ui)()n  me  by  the  aforesaid  act  of  Congress,  ap- 
proved May  "24,  ISIK).  do  j)roclaim  that  the  condition  si)ecified  in  the 
legislation  of  Congress  aforesaid  now  exists  and  is  fulfilled  and  that 
the  provisions  of  said  act  of  May  '24.  181)0,  whereby  Caiuidian  vessels 
and  wrecking  appliances  may  render  aid  and  assistance  to  Canadian 
and  other  vessels  and  projx'rty  wrecked,  disabled  or  in  distress,  in 
the  waters  of  the  United  States  contiguous  to  the  Dominion  of 
Canada,  including  the  Caiuil  and  imi)r()vement  of  the  waters  between 
Lake  ?]rie  and  Lake  Huron  and  the  waters  of  the  Saint  Mary's  River 
and  Caiuil.  aiv  now  in  full  force  and  effect. 

In  testimony  whereof.  I  have  hereunto  set  my  hand  and  caused 
the  seal  of  the  United  States  of  America  to  be  hereunto  affixed. 

Done  at  the  City  of  Washington  this  seventeenth  day  of  July  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-three 
and  of  the  Lidependence  of  the  United  States  the  one  hundred  and 
eiirhteenth. 

[seal.]  Grovek  Cleveland 

By  the  President 
W.  Q.  (jkesiia.ai 

Scortari/  of  State. 

'I'liis  iiroclaiiiatioii  is  i)riiit('(l  in  For.  Kel.  ISlC?.  ;U4.  and  in  Uichardson's 
Messages  and  I'Mi>ers  of  tlie  Presidents,  IX.  .VM\.  For  the  Canadian 
order  in  conncil  of  .May  17.  18!K!.  see  For.  Rel.  ISO;^.  ,341,  .'{42-;U4. 

In  conininniiMtinK  to  tlic  Ilritisli  ("nd)as.sy  at  Wasliliifrton  tlie  clause  in 
the  act  of  Marcli  :'..  l.S!t:',.  strildn«  out  of  the  act  of  May  24,  1800.  the 
words  "  the  WeHand  Canal."  the  Department  of  State  proposed  an 
Miranjrenient  "covering  the  ordinary  disabilities  to  which  self-pro- 
pelled or  towed  vessels  are  liable  in  passing  through  iidand  canals, 
so  that  legitimate  and  timely  assistance  on  the  part  of  an  American 
vessel  may  lie  freel.v  rendered  in  such  cases,"  and  declared  that  the 
President  stood  ready  to  issue  his  proclamation,  coincideutly  with 


142.]  THE    GREAT    LAKES.  689 

similar  aftiou  l)y  Caimda,  on  being  assured  that  the  application  of 
the  legislation  of  the  two  countries  "  in  the  territorial  waterways  of 
the  Dominion  to  the  commerce  i)assing  through  the  channels  that 
connect  the  lakes  will  be  as  liberal  as  that  proi)osed  to  be  made  in 
the  Anjerican  territorial  waters."  (Mr.  Gresham,  Sec.  of  State,  to 
Sir  J.  rauncefote,  Brit,  ami).,  March  24,  ISir^.  For.  Kel.  1893,  334.) 

This  proposal  remained  unanswered  when  the  President  issued  his  proc- 
lamation. (For.  Uel.  1893,  344;  Mr.  Adee,  Act.  Sec.  of  State,  to  Sir 
J.  Pauncefote,  Brit,  amb.,  '*  personal. '  July  24,  1803,  MS.  Notes  to 
Gr.  Br.  XXII.  358.) 

Reply,  however,  was  subsequently  made  to  the  effect  that  the  iiris'ileges 
conferred  by  the  Canadian  act  of  1893  were  expressly  exempted  from 
the  restrictions  of  the  coasting  laws  of  Canada  ;  that  "  pending  a 
consideration  of  the  l)roader  question  of  a  general  reciprocity  in 
coasting  and  towing,  it  is  not  necessary  to  modify  existing  regu- 
lations :  "  but  that  the  Canadian  government  was  willing  to  enter 
into  negotiations  or  to  receive  proposals  "on  the  general  question." 
(Sir  J.  Pauncefote.  Brit,  amb.,  to  Mr.  Gresham,  Sec.  of  State,  Aug. 
31,  1893,  For.  Kel.  1893,  347,  enclosing  a  certified  copy  of  an  approved 
minute  of  the  privy  council  of  Canada  of  Aug.  15,  1893.) 

At  the  same  time  it  was  stated  "  that  though  at  the  conference  held  at 
Washington  in  February,  1892,  it  was  agreed  that  instructions  should 
be  issued  by  the  Fnited  States  Treasury  Department  to  authorize 
the  necessary  towing  incidental  to  the  wrecking  and  salvage  con- 
templated by  the  act  of  Congress,  and  to  provide  for  the  relaxation 
of  the  customs  laws,  no  such  instructions  have  yet  been  issued." 
(Sir  J.  Pauncefote.  Brit.  amb..  to  Mr  Gresham,  Sec.  of  State,  Aug. 
31,  1893,  For.  Bel.  1893.  348.) 

Oct.  5,  1893,  Mr.  C.  S.  Hamlin,  Acting  Secretary  of  the  Treasury,  issued 
to  "  collectors  of  customs  and  others  "  the  following  circular : 

"  The  attention  of  collectors  and  other  officei'S  of  the  customs  upon  the 
northern  frontiers  of  the  United  States  is  invited  to  the  President's 
proclamation,  dated  .Inly  17,  1893,  relative  to  reciprocity  of  wreck- 
ing between  the  United  States  and  « 'anada. 

"  The  Acting  Secretary  of  State,  under  date  of  the  30th  ultimo,  recom- 
mends that  further  regulations  regarding  the  matter  be  promulgated 
l)y  this  Department,  and  states  that  during  the  visit  of  the  Canadian 
connnissioners  to  Washington  in  October  last  the  subject  of  recip- 
rocal i)rivileges  in  wre<'king  was  under  consideration,  and  that  a 
declaration  was  then  made  on  the  part  of  the  Government  of  the 
rnit<>d  States  that  under  the  act  of  Congi'ess.  approved  May  24.  189(), 
relating  to  vessels  wrecked  or  disabled  in  the  waters  conterminous  to 
the  United  States  and  Canada,  the  aid  and  assistance  provided  for  in 
said  act  includes  all  n«>cessMry  towing  incident  to  said  aid  and  assist- 
ance, and  that  nothing  in  the  coasting  or  cus-toms  laws  of  this 
country  restricts  the  salving  operatitms  of  such  vessels  and  their 
api)liances. 

"The  i)roclamation.  and  the  act  of  May  24,  1890.  on  which  it  was  based, 
are  embodied  in  this  I)ei)artment's  Circular  No.  114,  dated  July  28. 
189.3.  and  should  bo  construed  and  observed  by  all  customs  officers  in 
such  a  manner  as  to  give  due  effect  to  the  declaration  aforesaid,  in 
case  of  Canadian  vessels  and  wrecking  appliances  rendering  aid  and 
assistance  to  Canadian  and  other  vessels  and  proi)erty  wrecked,  di«- 

H.  Doc.  551 i4 


()90  NATIONAL   jurisdiction:    TERKTTORTAL   LIMITS.  [§142. 

ablod.  or  in  distress  in  the  waters  of  the  United  States  contiguons  to 
the  Douiiiiion  of  Canada,  including  the  canal  and  improvements  of 
tlie  waters  Itetween  I^alve  Erie  and  Lal^e  Huron  and  the  waters  of  the 
St.  Marys  river  and  canal.  In  case  of  donbt  as  to  the  action  whicli 
sliould  he  taken  in  any  case  the  Department  will  Rive  special  instruc- 
tions. 

"  Similar  regulations  have  heen  made  by  the  Canadian  Government."' 
(For.  Uel.  18!):?.  .T)!.) 

De<'.  1.'),  18!)."i.  the  British  amba.ssador  at  Washington  conununicated 
to  the  Department  of  State  a  circular  of  the  Canadian  Department  of 
Trade  and  Conuuerce  of  Nov.  7.  1S!):{.  as  follows: 

*'  1  am  desired  by  the  honorable  the  minister  of  trade  and  connnerce  to 
direct  the  attention  of  all  persons  interested  to  the  following: 

"At  the  conference  held  at  Washington  in  February,  1802,  between  dele- 
gates of  the  Canadian  Government  and  re])resentatives  of  the 
Fnited  States  (Jovernment,  among  other  things  di.scussed  was  the 
subject  of  reciprocal  wrecicing  i)rivileges  in  waters  conterminous  to 
Canada  and  the  Fnited  States,  and  it  was  then  agreed  that  the  sub- 
ject should  lie  dealt  with  by  legislation  on  the  part  of  Canada  and  by 
such  instructions  from  the  Treasury  Department  of  the  Fnited  States 
as  might  be  necessary  to  give  to  the  act  of  Congress  on  the  subject  such 
liberal  construction  as  would  include  permission  for  all  towing  neces- 
sary and  incidental  to  wrecking  and  salvage,  and  the  relaxation  of 
customs  laws  in  so  far  as  might  be  necessary  to  make  the  reciprocal 
arrangements  effective.     (Mdc  Sessional  Papers  No.  52.  18t);^.) 

"  In  pursuance  of  this  agreement  the  Parliament  of  Canada,  at  its  next 
ensuing  session.  i)assed  the  act  55-50  Vic,  chaj).  4.  intituled  'An  act 
resi»ecting  aid  by  Fnited  States  wreckers  in  Canadian  waters,' 
and  upon  being  apprised  that  the  act  of  Congress  ai)proved  June  10, 
1878.  entitled  'An  act  to  aid  vessels  wrecked  or  disabled  in  waters 
conterminous  to  the  I'nited  States  and  the  Dominion  of  Canada."  as 
amended  by  an  act  approved  May  24,  1800,  had  been  further  amended 
by  an  act  apjiroved  March  3.  1808,  his  excellency  the  (Jovernor- 
General  issued  liis  proclamation  on  May  17,  180:i,  bringing  the  said 
act  5.5-."»ti  Vic,  ciiap.  4.  into  force  on  and  after  the  1st  day  of  June, 
180.S,  which  said  ])roclamation  was  connmuiicated  to  the  Fnited 
States  (Jovernment  by  Her  Majesty's  ambassador  at  Washington  on 
the  2d  day  of  June,  ^H'.Y^.  whereui>on  the  President  of  the  Fnited 
States  issued  on  the  17th  day  of  July,  180;i,  his  ])r<)clamation  declar- 
ing the  act  of  Congress  above  referred  to  to  be  from  that  time  in 
full  force  and  effect. 

"  Fnder  date  of  the  5th  October,  180:{.  the  Secretary  of  the  Treasury  of 
the  Fnited  States  issued  a  cii'cular  letter  of  instructions  relative  to 
the  construction  to  be  given  to  the  act  of  Congress  and  relative  to  all 
necessary  towing  incidental  to  any  wrecking  or  salving,  and  to  sucli 
relaxation  of  Fnited  States  customs  laws  as  appeared  necessary  i!) 
order  to  give  full  effect  to  recii>rocal  wrecking,  etc.  in  the  waters 
conterminous  to  the  two  counti'ies. 

"Aiii)en<led  are  co])ies  of  the  act  .5.5-.5<;  Vic.  chap.  4.  of  his  excellency's 
I)rocli\mation  of  tbi'  17th  May  last,  of  the  President's  proclamation 
of  the  17th  July  last,  which  embodies  the  act  of  Congress  as  amended, 
and  of  the  Fnited  States  Treasury  circular  of  the  5th  October,  all 
above  referred  to.""     (For.  Hel.  180.'{,  353.) 


§143.]  THE    GREAT    LAKES.  691 

In  ji  case  of  salvjiKO  off  Denmnn  Island.  Strait  of  Georgia.  al)out  SO  miles 
north  of  the  boundary  between  the  Tnited  States  and  Canada,  the 
two  Governments  concurred  in  the  view  that  the  waters  in  which  the 
wrecked  ship  lay  were  not  "  contiguous  "  in  the  sense  of  the  arransre- 
nient.  (.Memorandum,  May  8,  1001,  MS.  Notes  to  Brit.  Leg.  XXV. 
5:}4.) 

"The  arrangement  in  (juestion  is  not  in  terms  confined  to  the  lakes  and 
the  waterways  connec-ting  them,  but  includes  the  '  contiguous  waters  ' 
dividing  the  United  States  and  Canada.  No  i»i-eclse  definition  of  such 
waters  at  the  Atlantic  and  ra<ific  extremities  of  the  connuon  bound- 
ary has  been  reaclH'd  between  the  two  countries,  and  initil  a  case 
shall  arise  jn-esenting  the  cjuestion  for  settlement  this  Department 
could  not  i»rejudge  the  matter  l)y  a  hypothetical  oi)inion,  further  than 
to  say  that  the  clear  sense  of  the  phrase  'Canadian  waters  contig- 
uous to  the  I'nited  States  '  would  necessarily  exclude  the  (Julf  of  St. 
Lawrence  and  the  Atlantic  coasts  of  Nova  Scotia,  and  perhaps  also 
the  Bay  of  Fundy  except  as  to  that  part  of  its  waters  which  forms 
the  conventional  l)oundary  between  the  United  States  and  the  j)os- 
sessions  of  Great  Britain."  (Mr.  (Jr(>sham.  Sec.  of  State,  to  Mr.  Ran- 
dall. Aug.  18.  1898,  193  MS.  Dom.  Let.  190.) 

See  also  Mr.  Day.  Assist.  Sec.  of  State,  to  Mr.  Scott,  Feb.  2G,  1898,  220 
MS.  Dom.  Let.  49. 

Section  4.370,  Revised  Stats.,  which  imposes  a  penalty  on  foreign  steam 
tugs  "  found  employed  in  towing  documented  vessels  of  the  I'nited 
States  plying  from  one  port  or  place  in  the  same  to  another,"  does 
"  not  apply  to  any  case  where  the  towing,  in  whole  or  in  part,  is 
within  or  upon  foreign  waters."  (See.  as  to  the  reciprocal  observance 
of  this  rule  on  the  Great  Lakes.  Mr.  Bayard.  Sec.  of  State,  to  Mr. 
Fairchild.  Sec.  of  Treasury.  -May  IS.  ISST.  \(\4  .MS.  Dom.  Let.  201, 
enclosing  copy  of  a  note  from  the  Britisli  minister  of  May  10,  1887.) 

(8)     LIM1TATK).\    OK    NAV.\I,    FOKCES. 

"  The  iiiforniation  you  give  of  orders  having  been  issued  by  the 
British  (lovernnient  to  increase  its  naval  force  on  the  lakes  is  con- 
firmed by  intelligence  from  that  quarter  of  measures  having  been 
actually  adopted  for  the  ])urpose.  It  is  evident,  if  each  party  aug- 
ments its  force  there  with  a  view  to  obtain  the  ascendancy  over  the 
other,  that  vast  expense  will  be  incurred  and  the  danger  of  collision 
augmented  in  like  degree.  The  President  is  sincerely  desirous  to 
l)revent  an  evil  which  it  is  presmned  is  equally  to  be  deprecated  by 
both  Governments.  He  therefore  authorizes  you  to  i)r()pose  to  th(i 
liritish  Government  such  an  arrangement  respecting  the  naval  force 
to  be  kept  on  the  lakes  by  both  Governments  as  will  demonstrate  their 
j)acific  policy  and  secure  their  peace.  He  is  willing  to  confine  it  on 
each  side  to  a  certain  moderate  number  of  armed  vessels,  and  the 
hnnaller  the  munber  the  more  agreeable  to  him:  or  to  abstain  altogether 
from  an  armed  force  beyond  that  used  for  the  revenue.     You  will 


692  NATIONAL  jurisdiction:  territorial  limits.       [§143. 

i)rin<r  this  siibjoct  under  tlio  consideration  of  the  British  Government 
innnediately  after  the  receipt  of  this  letter.'' 

.Mr.  Monroe.  Sec.  of  State,  to  Mr.  Adiinis.  niin.  to  England,  Nov.  16,  1815, 
MS.  Inst.  r.  States  Ministers.  VIII.  :? :    II.  Doe.  471,  50  Cong.  1  sess.  5. 

The  proposal  embodied  in  tlu>  foreijoino;  instruction  was  duly  sub- 
mitted by  Mr.  Adams  to  Lord  Castlerae<rh.  Avho  was  disinclined  to 
accede  to  it.  on  the  <rr()und  that  a  mutual  stipulation  against  arminij 
durin<r  peace  would.  In'  reason  of  the  advantage  of  position  enjoyed 
by  the  United  States,  be  unequal  and  disadyantatroous  in  its  operation 
to  (Ireat  Britain."  Subsequently,  howeyer.  on  the  proposals  beinir 
renewed.  Loi'd  Castleraeah  decided  to  accept  it.  and  authorized  Mr. 
Ba<rot.  the  British  minister  at  Washinirton.  to  conclude  an  arrange- 
ment on 'the  subjiH-t.''  Negotiations  ensued  between  Mr.  Bagot  and 
the  Department  of  State,  resulting  in  an  agreement  which  Ayas 
effected  by  an  exchange  of  notes,  dated  April  28  and  April  20.  1817, 
and  signed,  respectiyely.  by  Mr.  Bagot  and  by  Mr.  Kush.  who  had 
then  succeeded  Air.  Monroe  as  Secretary  of  State.  By  this  agreement 
llie  nayal  force  to  be  "  nutiutained  *"  by  each  (Toyernment  on  the  Great 
Lakes  was  limited,  on  T^ake  Ontario,  to  one  vessel  not  exceeding  100 
tons  burden  and  armed  with  one  18-j)ound  cannon;  on  the  upper 
lakes,  to  two  vessels  not  exceeding  the  same  burden  and  armament; 
and  on  Lake  Ghami)laiu.  to  one  vessel  of  no  greater  size  and  arma- 
ment. All  other  armed  vessels  on  the  lakes  were  to  be  forthwith 
dismantled,  and  "  no  other  vessels  of  war  "'  were  to  be  "  there  built  or 
armed."  This  stii^uiation  was  to  remain  in  effect  till  six  months 
after  either  party  should  have  given  notice  to  the  other  of  a  desire 
to  terminate  it. 

Orders  were  innnediately  given  l)y  both  Governments  for  carrying 
the  arrangement  into  efl'ect.  A|)ril  (>.  ISIS,  however.  President  Mon- 
roe. a])|)arently  out  of  abundant  caution,  connnunicated  it  to  the 
Senate,  which  on  A|)ril  K).  ISIS,  ''approved  of  and  consented  to" 
it  and  "  recommended  that  the  same  be  carried  into  effect  by  the 
President."  ' 

Tt  was  formally  i)roclaime(l  by  the  President  A])ril  28,  ISIS.''  Xo 
exchange  of  ratifications  took  jilace:  but  the  arrangement  became 
effective,  by  virtue  of  executive  ordei-s.  from  the  date  of  the  oriirinal 


"  Mr.  Adams,  niin.  to  England,  to  Mr.  Monroe.  Sec.  of  State,  Jan.  31  and  Feb. 
S.  IsiC.  II.  Doc.  471.  5('>  Cong.  1  soss.  ."».  See  also  Mr.  Adams  to  Mr.  Monroe, 
March  22  and  Marcli  :!0.   ISlC.  id.  7. 

J*  II.  Doc.  471,  ."><!  Cong.  1  sess.  7-n. 

'Am.  St.it(>  I'aiHM-s.  For.  Uel.  I\'.  2n2  ;  S.  Doc.  ."{((l.  15  Cong.  1  sess.:  11.  Doc. 
171.  5(;  Conir.  1  sess.  IT). 

'Ml  Stat.  7r.(;.  Tlie  ai-rangement  is  printed  in  5  Br.  &  For.  State  Pajwrs, 
12rH:>-1201. 


§  143.]  THE    GREAT    LAKES.  693 

exchange  of  notes.  Existing  legislation  gave  the  Secretary  of  the 
Xavv  ample  discretion  as  to  the  force  to  lie  employed  on  the  lakes. 
Appropriations  for  the  maintenance  of  such  force  were  made  in 
general  terms." 

By  the  act  of  March  3,  1813.  the  President  was  authorized  to  pro- 
vide on  the  lakes  such  sloops  of  war  or  other  armed  vessels  as  the 
public  service  might  require;  ''  and  after  the  treaty  of  (rhent  he  was 
authorized  to  cause  all  armed  vessels  of  the  United  States  in  those 
waters,  except  such  as  he  might  deem  necessary  to  enforce  the  reve- 
nue laws,  to  be  sold  or  laid  up.  as  he  might  judge  most  conducive 
to  the  public  interest :  ''  so  tiiat.  when  the  arrangement  of  1817*  was 
made,  the  force  to  be  maintained  on  the  lakes  was  within  his  dis- 
cretion. Xor  was  this  discretion  impaired  by  subsequent  legislation. 
On  the  contrary,  he  was  authorized,  by  the  act  of  March  3,  18-25,  to 
sell  "  the  whole  of  the  i)ublic  vessels  upon  Lakes  Erie.  Ontario,  and 
Champlain,  except  the  ships  of  the  line  Xcic  Orlcuais  and  CJiippetra, 
now  on  the  stocks,  under  cover,  in  Sacketts  Harbor."''  By  the  act 
of  September  9,  1841.  an  aj^propriation  was  made  "  for  the  con- 
struction or  armament  of  such  armed  steamers  or  other  vessels  for 
defens(^  on  the  northwestern  lakes  as  the  President  may  think  proper 
and  as  may  be  authorized  by  the  existing  stipulations  between  this 
and  tiie  British  Government."*' 

In  1838  Mr.  Eorsyth.  who  was  then  Secretary  of  State,  called  the 
attention  of  Mr.  Eox,  the  liritish  minister,  in  a  ])ersonal  interview, 
to  the  |)resence  in  Lake  Erie  of  certain  vessels  which  had  been  hirefl 
and  armed  by  the  authorities  of  Tapper  Canada  to  prevent  appre- 
hended incursions  of  persons  engaged  in  ])romoting  or  renewing  the 
rebellion  in  that  province.  Mr.  Fox  subsequently  gave  an  assurance 
in  writing  that  the  arnuiment  in  <|uestion  was  "equipped  for  the  sole 
purpcw  .  .  .  of  guarding  Her  Majesty's  Provinces  against  a 
manifest  and  acknowledged  danger."  and  that  it  ^vould  be  "  discontin- 
ued at  the  earliest  possible  period  after  the  causes  which  now  create  that 
danger  cease  to  exist."  ^  The  subject  was  not  renewed  by  Mr.  Forsyth 
till  the  autumn  of  1830.  when  he  stated  to  Mr.  Fox  that  "  the  causes 
assigned  in  liis  note  no  longer  existing,  the  President  exjM'cted  that 
the  T^i'itish  ai'inament  ui)on  the  T^akes  would  be  placed  upon  the  foot- 


"Act  of  .June  12.  170S.  1  Stat.  r>(V4 ;  act  of  Aitril  IS,  1S14.  .*{  Stat.  i:i9. 

6  2  Stat.  S21. 

'■Act  of  Feb.  27,  181."),  :{  Slat.  217. 

«i4  Stat.  l.'n. 

'•  ;■)  Stat.  4."S.  4«K). 

f  Mr.  Fox.  Brit,  niiii..  to  Mr.  Forsyth.  Sec.  of  State.  Nov.  2."..  l.S:?S.  H.  Doc.  471, 
r^\  CoTiff.  1  sess.  10.  See.  as  to  the  Canadian  disturhances.  Moore.  Int.  Arliitra- 
tioas,  III.  2419  et  seq. 


(U)4  NATIONAL  jurisdiction:   territorial  limits.       [§143. 

iiiir  presci-ilKMl  hy  the  coiivention." "  Mr.  Fox  promised  to  coinmuni- 
cato  the  suhstiuu-o  of  tlio  conversation  to  his  (xovernment.  In  1840, 
however.  o\vin<>'  to  the  increase  of  niilitarv  and  naval  preparations 
in  Canada,  and  to  rumors  that  still  further  j>reparations  were 
intended,  resolutions  of  inquiry  were  offered  in  Congress,  and  an 
approj)riati()n  was  made  for  the  increase  of  the  armaments  of  the 
Ignited  States.'- 

Se]>teml)er  1^5,  1841.  Mr.  Webster,  who  had  then  become  Secretary 
of  State,  addressed  a  note  to  Mr.  Fox.  in  which,  after  referrin<r  to  the 
hitter's  note  'to  Mr.  Forsyth  of  November  2.").  1888.  he  stated  that 
infornuition  had  been  received  that  "  two  lar<re  steam  vessels,  fitted 
for  warlike  service,  of  400  or  500  tons  burden,  and  ca])able  of  carrv- 
iiiir  fifteen  or  twenty  <runs."'  were  "built.  i)artially  e(iuii)i)ed.  and 
ready  to  receive  ordnance,"'  and  then  lay  at  ('hii)j)ewa:  that  the 
United  States  did  not  allow  itself  to  doubt  that  the  object  of  this 
preparation  was  "  i)urely  defensive,  and  intended  only*  to  guard 
ao:ainsf  attacks  lil^e  that  of  18H8;'"  but  that,  as  it  far  exceeded  the 
amount  of  force  which  was  permitted  by  the  stipulations  of  1817.  it 
seemed  proj)ei-  to  call  the  attention  of  the  British  (iovernnjent  to  the 
subject,  to  the  end  that  both  parties  mioht  have  a  clear  undei-standing 
ui)on  it.  Mr.  ^^'ebster  therefore  expressed  the  hope  that  Mr.  Fox 
mitrht  be  al>le  "  to  <iive  explicit  assurances  .  .  .  that  these  ves- 
sels of  wai".  if  unhapi^ily  it  shall  be  found  necessary  to  use  them  at  all. 
will  be  confined  to  the  sole  and  [)recise  purpose  of  guarding  Her 
Majesty's  j)ro\inces  against  hostile  attacks." 

.Mr.   Wcl.stcr.   Sec.  of  State,   to  Mr.   Fox.   P.rit.   iiiin..   Sept.   25.   1.S41,  MS. 
Notes   to   I'.rit.   Lofi.   VI.   L'lU;   extract   is   in   II.  Doe.  471,  50  Cong.   1 


Xo  re])ly  to  this  connnunication  having  been  received,  Mr.  Webster. 
Xovemln'r  21>,  1841,  again  addressed  Mr.  Fox  in  a  similar  sense,  but 
more  urgently.' 

Mr.  Fox  on  th(>  following  day  gave  the  desii-ed  assurance  that  the 
vessels  in  (]uestion  had  been  e<iuipi)ed  "  for  the  sole  purj)()se  of  guard- 
ing Iler  Majesty's  ])ro\inces  against  hostile  attack,"  but  stated  that, 
it  iM'ing  notoiMous  that  thos(>  pi'ovinces  wei"e  "  threatened  with  hostile 
in<-ur.-ions  by  combinations  of  armed  men"  from  the  United  States, 
and  that  the  effoi'ts  of  the  Fnited  States  to  suppress  such  combina- 
tions had  not  been  attended  with  the  wished-for  success,  he  should 
refer  Mr.  Webster's  communications  to  Her  Majesty's  Government. 

"  II.  Doc.  471,  .">(>  Cong.  1  scss.  lio. 

'^  Sec  II.  Kx.  Docs.  Ki-'J  and  L'4<i.  l'C  Cong.  1  sess.  :  II.  Doc.  471.  5(;  Cong.  1 
sess.  L'l-^-J.-!:  5  Stat.  4r,0. 

'■Mr.  \Vehst<'r.  Sec.  of  State,  to  Mr.  Fox.  Brit.  niin..  Nov.  2!),  1841,  MS.  Notes 
to  British  Leg.  VI.  22:!;  II.  Doc.  471,  .50  Cong.  1  sess.  2:3. 


§  148.]  THE    GREAT    LAKES.  695 

v,ith  u  view  to  learn  its  wishes  as  to  the  continuance  of  the  conven- 
tion." 

The  correspondence  here  ended. 

In  the  summer  of  1844  the  United  States  put  afloat  in  Lake  Erie 
the  side- wheel  hai'k  Michigan,  which  was  built  at  Pittsburg  and 
removed  in  sections  to  Erie.  Her  registered  tonnage  was  498  tons,  and 
>he  was  armed  with  two  8-inch  guns  and  four  32-pound  carronades. 
The  British  minister  at  Washington  remonstrated  and  requested 
explanations,'^  and  the  vessel  was  ordered  not  to  leave  Erie  till  further 
orders.  At  the  same  time  it  was  stated  that  there  was  reason  to 
believe  that  the  British  (lovernment  still  had  in  commission  on  the 
lakes  a  larger  force,  both  in  number  and  tonnage,  than  was  authorized 
l)V  the  agreement  of  1817,  and  it  was  suggested  that,  in  view  of  the 
substitution  of  steam  for  sails,  and  of  the  increase  in  the  size  of 
vessels,  since  the  agreement  was  nuule.  a  revision  of  it  would  be 
justified.' 

Tlie  Mulligan  appears  to  have  remained  in  the  lakes  without  fur- 
ther objection  till  18r)().  when  Lord  Clarendon,  though  disclaiming 
any  wish  or  purpose  to  complain,  apprized  Mr.  Dallas,  who  was  then 
Fnited  States  minister  in  London,  that  he  had  been  written  to  respect- 
ing the  existence  at  Detroit  of  a  revenue  cutter  whose  size  and  arma- 
ment were  incompatible  with  the  arrangement  of  1817.*'  An  inquiry 
on  the  subject  was  subsequently  made  by  Lord  Xapier.'^  The  Mieli'i- 
gan  was  not  in  fact  a  revenue  cutter,  but  was  under  the  control  of 
the  Navy  Depaitment.  Her  presence  was  again  referred  to  by  Lord 
Lyons  in  Isfil.'^ 

In  18()4.  with  a  view  to  enable  the  United  States  to  take  measures 
against  the  acts  of  Confederate  agents,  who  were  endeavoring  to 
carry  on  hostilities  from  Canadian  territory,  the  Plouse  of  Represen- 
tatives adopted  a  joint  resolution  looking  to  the  termination  of  the 
arrangement  of  1818.  The  resolution  was  not  then  considered  in 
the  Senate,  and  in  the  autumn  of  1804  Mr.  Seward  instructed  Mr. 


"  Mr.  Fox.  r.i-it.  mill.,  to  Mr.  Webster,  Sec.  of  State.  Nov.  :?0,  1841.  II.  Doo.  471. 
4(;  Coiif,'.  1  scss.  24. 

''.Mr.  rMkciiliaiii.  lirit.  iiiin..  to  Mr.  Ciilhoun.  Se<-.  of  State.  .July  2.''.,  1844. 
II.  Doc.  471.  .")•;  ron<;.  1  sess.  •J4-2."'). 

'•-Mr.  ("allionii.  See.  of  State,  to  Mr.  Pakenliiun.  lirit.  inin.,  Sept.  .">.  1844. 
cnclosinir  coi'.v  of  a  letter  <tf  Mr.  Mason.  Sec.  of  Navy,  Sept.  4,  1844,  II.  Doc.  471. 
."><;  Coli^'.   1   s«>ss.  !».">. 

f'Mr.  Marcy.  Sec  of  State,  to  Mr.  (Juthrk'.  Sec.  of  Tri-asury.  Dec.  Iti.  1S.">C., 
4C,  :MS.  Doiii.  Let.  1C,!»;  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Dohliiii,  Sec.  of  Navy, 
iH'c.  -IW.  isr.C.  4<;  MS.  Doin.  Let.  180. 

'Lord  .\a|)i('r.  I'.rit.  iiiiii..  to  .Mr.  ("a.><s.  Sec.  of  Stato.  Apr.  !>,  18.">7.  II.  Doc. 
471.  ."iCi  ("oi;}r.  1  scss.  "r.. 

^  Lord  Lyons,  lirit.  iiiiii.,  to  Mr.  Seward,  Sec.  of  State,  Aug.  ."il,  18()1,  II.  Doc. 
471,  ."»(]  Conjj.  1  ses.s.  27. 


696  NATIONAL  jurisdiction:  territorial  limits.       [§143. 

Adams,  then  minister  in  London,  to  advise  the  British  Government 
that  the  Secretary  of  the  Treasury  had  cliartered  two  propellers  for 
defensive  purposes  in  Lake  Erie  and  Lake  Ontario,  and  also  to  give 
the  six  months*  notice  of  termination  required  l)y  the  arranorement. 
This  Mr.  Adams  did  November  2H.  IHCA.  Pursuant  to  the  terms  of 
the  notice,  which  was  afterwards  ratified  hv  a  joint  resolution  of 
Conp-ess.  approved  February  0,  \HVuk  the  arrangement  was  to  ter- 
minate on  the  *28d  of  the  following  May.  But  before  that  time,  with 
the  decline  of  the  Confederate  cause,  the  situation  on  the  border 
greatly  imi)roved.  and  in  March,  ISGo,  Mr.  Adams  was  instructed  to 
say  that  the  United  States  was  "  quite  willing  that  the  convention 
should  reuuiin  practically  in  force.'" "  Mr.  Seward  subsequently 
stated,  in  response  to  an  inquiry  on  the  subject,  that  the  instruction 
to  Mr.  Adams  "  was  intended  as  a  withdrawal  of  the  previous  notice 
within  the  time  allowed,  and  that  it  is  so  held  by  this  Government."  ^ 

Soon  after  the  withdrawal  of  the  notice,  Mr.  Seward,  replying  to 
a  request  of  Sir  Frederick  Bruce  for  explanations  as  to  the  construc- 
tion of  several  vessels  prepared  for  the  recejition  of  a  powerful  arma- 
ment, which  were  reported  to  be  destined  for  service  on  the  Lakes, 
stated  that  they  were  ''  intended  exclusively  for  revenue  j)urposes, 
and  that  their  armament,  if  any.  will  not  be  allowed  to  exceed  the 
limit  stipulated  in  the  conventional  arrangements."  *■ 

Mr.  Seward  had  previously  stated,  in  a  letter  to  the  Secretary  of 
the  Treasury,  that  he  was  not  '*  prepared  to  acknowledge  "  that  the 
purpose  of  the  arrangement  of  1817  "  was  to  restrict  the  armament 
or  tonnage  of  vessels  designed  exclusively  for  the  revenue  sers'ice."  ^ 

In  the  negotiations  leading  up  to  the  arrangement  of  1817  the  dis- 
tinction between  naval  forces  and  the  revenue  service  was  at  times 
clearly  expressed,  but  the  final  notes  did  not  record  it.  But,  since 
Mr.  SewanTs  note  to  Sir  Frederick  Bruce,  it  seems  to  have  been  ad- 
mitted on  both  sides  that  the  arrangement  did  not  preclude  the  main- 
tenance of  a  revenue  service.  In  1892  tlie  United  States  revenue 
s(n"vice  on  the  Lakes  comprised  three  steamers:  The  Perry,  stationed 
at  Erie,  281.54  tons,  arme#i  with  two  H-incii  riHes;  the  Fes,senden,  at 
Detroit,  821). 81  tons,  witli  one  8)()-p<)under  l*arrott  gun,  two  24- 
pounder  Dalghreu  howitzers,  and  two  8-inch  rifles;  the  Johnson^  at 
Milwaukee.   499    tons,    with    one    8()-p()un(ler    Parrott    and    two    24- 


"  Mr.  Seward.  Seo.  of  State,  to  Mr.  Adams,  iiiiii.  to  Knj^laiid.  .Marclj  S,  18(55, 
II.  Doc.  471.  .">«■)  Coiif;.  1  scss.  :',:'.. 

«- Mr.  Seward.  See.  of  State,  to  Sir  F.  P.ruct'.  Hrit.  iiiiii..  .luiu-  lO,  IcSCm.  II.  Doe. 
471.  ."><;  ("oiijr.  1  sess.  .'54. 

'•Mr.  Seward.  Sec.  of  State,  to  Sir  F.  Knice.  Hrit.  iniii..  Nov.  4,  1,S!>.">:  II.  Doc. 
471.  .">r,  Toil},'.  1  scss.  .34. 

''.Mr.  Seward,  Sec.  of  State,  to  Mr.  Cliase,  Sec.  of  Trea.sury.  May  7,  1S(>4,  G4 
MS.  Duin.  Let.  228. 


§  143.]  THE    GREAT   LAKES.  697 

])ounder  ho^Yitze^s.  It  was  stated  at  the  same  time  that  two  vessels 
for  the  Canadian  Government  had  been  constructed  at  Owen  Sound, 
Ontario,  which,  although  styled  revenue  cutters  and  destined  to  sup- 
press snHig<rlin«:  on  the  St.  Lawrence  River  and  the  lakes,  were 
capable  of  adaptation  to  naval  purposes;  and  that  another  revenue 
cutter  of  similar  type  had  been  launched  from  Hamilton,  Ontario. 
The  naval  force  of  the  United  States  on  the  Lakes  in  1892  was  con- 
fined, as  it  had  been  for  many  years,  to  the  single  iron  side-wheel 
steamer  3/ir/u'(/((n.  then  rating  GSf)  tons  and  carrying  four  howitzers. 
It  did  not  appear  that  any  British  or  Canadian  naval  vessels  had  for 
many  years  been  stationed  on  the  Lakes. 

As  the  result  of  the  foregoing  examination  it  may  be  said  (1)  that 
the  arrangement  of  181T  is  "  to  be  regarded  as  still  in  existence,  and 
only  terminable  in  good  faith  by  six  months"  notice  of  abrogation 
on  either  side;  "  (-2)  that,  in  respect  of  the  engagement  to  limit  the 
eft'ective  force  on  each  side  to  four  vessels  not  exceeding  100  tons  bur- 
den apiece,  and  each  armed  with  one  18-pounder  cannon,  it  does  not 
respond  ''  to  the  enormous  changes  wrought  in  the  conditions  of  inter- 
course upon  the  Lakes:  "  (?>)  that  the  reason  of  the  prohibition  to  build 
or  arm  other  vessels  of  war  on  the  Lakes  has  been  removed  by  the  open- 
ing of  an  outlet  by  water  to  the  sea;  (4)  that  the  arrangement  should 
therefore  "  be  modified  to  fit  the  new  order  of  things." 

Report  (if  Mr.  Foster.  Sec.  of  State,  to  the  President,  Dee.  7.  1892,  S.  Ex. 
Doc.  U.  .">•  Cong.  2  sess. ;  H.  Doc.  471.  .")<>  Cong.  1  sess.  i-'iS. 

The  report  here  cited  is  siihstantially  exhaustive,  and  the  facts  embraced 
in  the  foregoing  sununary  are  taken  from  it  except  in  a  few  instance.s, 
where  additional  facts  have,  as  will  appear  by  the  footnotes,  been 
taken  from  the  manuscripts. 

For  the  text  of  correspondence  in  1840,  and  18<>4- .">,  see  II.  Doc.  471.  5<5 
Cong.  1  sess.  ni)-(\2. 

See.  also,  S.  Report  44!».  .">  Cong.  2  sess.  reprinted  in  II.  Doc.  471,  56 
Cong.    1    sess.  02. 

"The  records  of  the  Deimrtment  of  .Justice  d(y  not  show  that  any  opinion 
h.is  been  rench'red  by  this  Department  ti>  the  effect  that  the  treaty  of 
1S17  .  .  .  does  not  now  exist."  CSlv.  Miller,  At.  (Jen.,  to  Sec. 
of  State.  Sept.  1.  18!»2,  MSS.  Dept.  of  State.) 

Se«'  letter  of  the  Hon.  Don  M.  Dickinson  to  Mr.  Herbert,  Sec.  of  Navy,  Oct. 
17,  18!»."i.  arguing  that  the  prohibition  to  build  or  arm  other  vessels 
of  war  on  the  Lakes  should  not  be  held  to  prevent  the  building  of  such 
vessels  there,  "  excei)t  they  be  armed,  e(iuipi)ed.  and  'maintained'  as 
war-ships  on  those  waters."      (M'.-nS.  Navy  I)ei)t.) 

The  Navy  Department  has  declined  to  award  contracts  for  the  construc- 
tion, even  in  parts,  on  the  Lakes,  of  war  vessels  which  might  be  held 
to  contravene  the  arrangement  of  1817.  (II.  Doc.  471,  •")<!  Cong.  1  sess. 
38,  G3-<U,  G7.) 

For  a  list  of  Hritish  and  Canadian  government  vessels  on  the  (Jreat  Lakes 
or  in  the  St.  Lawrence  River,  and  capable  (  f  running  back  and 
forth  through  the  canals,  in  18J».^,  see  II.  Doc.  471,  oO  Cong.  1  sess.  Go. 


698  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  144. 

As  to  tilt'  passjif^'i'  of  four  I'liited  States  revenue  cutters  from  the  (Jreat 

Lakes  to  the  Athintie  coast  after  the  outbreak  of  the  war  with  Spain, 

see  id.  (JH-Tl. 
For  corresi>ondence  in   ISHS  toucliin^  the  desire  of  the  United  States  to 

construct  on  the  Lakes  a  vessel  to  take  the  place  of  the  U.  S.   S. 

Michigan,  see  id.  (!7-72. 

"An  ajrroenient  Avas  reached  between  the  two  Governments  on  May 
30.  1S9S,  for  the  creation  of  a  joint  high  commission,  to  which  should 
be  referred  for  setth>ment  various  pending  questions  between  the 
United  States  and  Canada,  among  which  was  '  a  revision  of  the  agree- 
ment of  1S17  respecting  naval  vessels  on  the  Lakes.'  ...  Tn  1817 
the  Great  Lakes  were  independent  inland  waters,"  there  being  then 
"  no  navigable  connection  between  them  and  the  ocean.  Under  such 
circumstances  to  build  and  arm  vessels  on  the  Lakes  meant  '  to  main- 
tain '  them  there  and  to  use  them  for  no  other  purpose  than  as  part 
of  the  pennanent  armament.  .  .  .  Moreover,  at  the  time  of  mak- 
ing the  arrangement  the  region  of  the  Great  Lakes  was  in  large 
measure  an  uninhabited  wilderness.  To-day  the  Lakes  are  highways 
for  an  enormous  traffic,  and  theii"  ports  .  .  .  have,  among  other 
things,  peculiar  advantages  for  the  constructicm  of  certain  classes  of 
war  vessels.  .  .  .  The  American  members  of  the  Joint  High  Com- 
mission were  therefore  instructed  to  secure  some  agreement  whereby, 
inider  ])ro])er  conditions,  such  vessels  should  be  constructed  and 
passed  through  the  Canadian  canals  to  the  ports  of  the  United  States 
on  the  Atlantic  Ocean.  It  was  likewise  held  that  a  proper  construc- 
tion of  the  arrangement  did  not  prohibit  the  maintenance  on  the 
Lakes  of  vessels  properly  equipped  for  the  purpose  of  training  sea- 
men and  reserves  in  the  Middle  States,  and  that  the  employment  of 
a  proper  training  ship  is  not  necessarily  hostile  to  the  spirit  of  the 
arrangement  and  should  be  so  declared.  It  is  understood  that  some 
satisfactory  progress  was  made  in  the  Joint  TTigli  Commission  toward 
the  attainment  of  these  ends,  but  tlie  labors  of  the  commission  have 
been  suspended  without  I'eaching  a  definite  result." 

liejiort  of  Mr.  Hay.  Sec  of  Slate,  to  tlie  President.  Feb.  2<;.  1!)(¥).  H.  I>oc. 
471.  .")(;  ("ong.  1  sess.  L'-.".. 

7.   M.MUiiNAr,  Ska. 

(1)   (iKNKKAI.    IM!I.N(  IIT.KS. 

^   144. 

Perels.  in  his  work  on  the  Admiralty,  justifies  the  doctrine  of  the 
territoriality  of  adjacent  waters  on  the  three  following  grounds:  (1) 
The  security  of  a  uuiritinie  state  requires  the  possession  of  its  mar- 
ginal waters:  (-2)  (he  siirv^eillance  of  ships  which  enter  those  waters, 
whether  ])assing  through  or  stopping  there,  is  demanded  in  order  to 


§  144.]  THE    MAKGINAL    SEA.  699 

guarantee  the  efficient  police  and  the  development  of  the  political, 
commercial,  and  fiscal  interests  of  the  bordering  state;  (3)  the  enjoy- 
ment of  the  possession  of  territorial  waters  serves  to  sustain  the  exist- 
ence of  the  })oi)ulation  on  the  coast. 

Perels,  Seereclit.  §§  24,  .'57,  74,  7«)-88. 

See,  also,  Latour,  La  Mer  Territoriale  au  Point  de  Vue  Theorique  et  Pra- 
ti(iue.  Paris.  18S0.  This  autlior  defines  the  territorial  sea  us  the  sea 
adjacent  to  the  coasts,  over  which  the  bordering  nation  may  from 
the  shore  employ  its  armed  forces,  and  thus  exercise  the  power 
which  is  necessary  to  defend  its  territory  and  coasts,  assure  the 
safety  of  its  inhabitants,  and  guard  its  fiscal  and  commercial  inter- 
ests. In  following  out  his  discussion  he  maintains  a  distinction 
between  the  exercise  by  a  nation  of  its  j)rotective  power  and  the 
claim  of  exclusive  possession. 

See.  specially.  Territorial  Waters.  Questionnaire.  Kei)lies  and  Report,  in 
the  ir>th  annual  rei)ort  of  the  Association  for  the  Reform  and  Codi- 
fication of  the  Law  of  Nations.  (Jenoa.  1892. 

'*  The  principle  that  the  littoral  sea  forms  part  of  the  territory  is 
justified  by  the  exigencies  of  the  conservation  and  safety  of  the 
state,  fr(tln  the  military,  sanitary,  and  fiscal  point  of  view,  as  Avell 
as  from  the  ])()int  of  ,view  of  industrial  interests,  especially  that  of 
the  fisheries.  .  .  . 

''  How  far  does  the  littoral  sea  extend  ?  It  seems  reasonable,  in 
virtue  of  its  object  and  its  accessorial  quality,  to  say  that  it  extends 
as  far  from  the  shore  as  the  territorial  ])o\ver  can  be  defended  and 
maintained,  that  is  to  say,  to  the  range  of  cannon  shot.  .  .  . 

"  Some  recent  conventional,  legislative,  or  judicial  acts  have  re- 
placed the  range  of  camion,  which  varies  with  the  progress  of  arma- 
ments and  weapons,  by  a  fixed  distance  of  a  marine  league,  that  is  to 
say  three  nuirine  miles  or  a  twentieth  of  a  degree  of  latitude,"  wdiich 
was  formerly  the  range  of  cannon  shot.  "  The  rational  principle 
of  the  range  of  cannon  was  formulated  by  Bynkershoek,  in  chapter  2 
of  his  dissertation  de  domino  nuirh  (1703):  '  Generaliter  dicendum 
esset,  potestatem  terrae  finiri  ubi  finitur  armorum  vis.'" 

Rivier.  Droit  des  (Jens,  L  14r»,  14(),  147.  See.  also.  Latour,  La  Mer 
Territoriale  iui  Point  de  Vue  Theorique  et  Prati(iue.  1889;  Bar- 
clay. Anmiair<>.  Institnt  de  Droit  Int.  XIIL  12.")-1(!2:  IMocque.  Leg'f^- 
lation  des  Enux  et  de  la  Navigation.  1870-187.">:  Pradier-Fodcre, 
Droit  Int.  II.  8  m7:  Perels,  Manuel  de  Droit  M.ir.  Int.  (trad.  Arendt). 
§  .5  ;  A.  rjeouffre  de  I^aijradelle,  Le  Droit  de  TKtat  sur  la  Mer  Terri- 
toriale, 1898  (extract  from  La  Revue  Genc'rale  de  Droit  Int.  Public)  ; 
Phillimore  (.3rd  ed.).  I.  274;  Wheaton  (Dana's  ed.).  §  189;  Creasey, 
First  Platform  of  International  Law,  233;  Walker,  Science  of  Int. 
Law,  171. 

Chancellor  Kent  suggested  that,  considering  the  long  line  of  American 
coasts,  the  United  States  might  claim  control  of  the  waters  included 
within    lines    stretching    from    distant    headlands,    as,    for    iustance, 


700  NATIONAL   JURISDICTION:    TERRITORIAL    LIMITS.  f §  1^- 

from  (.'ape  Ann  to  CajK'  (Vxl.  from  Nantu<-ket  to  Montauk  Point,  from 
Moiitauk  Point  to  tlio  cajies  of  Delaware,  and  from  the  South  Cape 
of  Florida  to  the  Mississippi.      (Comm.  I.  **20,  :{0.) 

Woolsey  de<-lar(Hl  that  siu-h  a  claim  would  he  "out  of  c-haraeter  for  a 
nation  that  has  ever  assertetl  the  fretnlom  of  d(ml»tful  waters,  as  well 
as  contrary  to  the  spirit  of  more  recent  times."      (Int.  Law,  §  GO.) 

See.  also.  Martens.  Pr'-cis.  I.  :',;!i;:  Pduntschli.  §  :\(y2:  Ileffter.  §  75;  Kliiher. 
§  l.'JO:  Ortolan.  I.  I.V.:  Schialtarella.  Del  Territoris.  S:  Henry.  Adni. 
.Turis<liction.  §  S!» ;  Twiss.  Oreiron  Territory.  111.  citinjj  Vattel,  Book 
1.  S  2(1.".:  Cum.  r.  Manchester,  l.'.l'  Mass.  2:5(».  IMO  V.  S.  24f> :  In  re 
Ilumholdl  LumlK'r  Mfrs."  Assoc.  tM)  Fed.  Uep.  42S :  Montjromery  r. 
Henry  (ITSd).  1  Dallas.  4!>. 

The  eoiistal  waters,  harbors,  and  other  navio^able  waters  of  the 
ishmd  of  Porto  T?ico.  are  waters  of  the  United  States  within  the 
meaning:  of  sec.  10  of  the  river  and  harbor  act  of  1S90.  W  Stat.  ll.")l, 
prohibiting  miautliorized  obstructions  to  navijration  in  any  of  the 
waters  of  the  T'nited  States  and  vestin<r  in  the  Secretary  of  AVar  a 
certain  control  of  wharves  and  simihir  structures  in  ports  and  other 
waters  of  the  United  States. 

Knox.  At.-Oen..  Oct.  17.  IDOl.  -2:]  O],.  .V.l.  ."..".  • 

The  ruh'  of  territorial  waters  is  inapplicable  to  ships  on  the  hiirh 
seas:  hence  a  ship  can  not  draw  around  her  and  api)ropriate  so  nnicli 
^f  the  ocean  as  she  may  deem  necessary  for  her  protection,  and  jH'e- 
vent  any  nearer  approach. 

The  Marianna   Flora.  11   Wheat.  1. 

It  is  laid  down  that  forei<rn  ships  have  a  ri^rht  of  innocent  passajre 
throu<rh  the  niar<riiial  sea. 

Hall.  Int.  Law  (4th  ed.  i .  212:    Kivier.  Principes  du  Droit  des  Gens,  I.  1.j2. 

As  to  what  constitute  the  coastal  waters  of  the  United  States,  in  the  sense 
of  the  rules  of  navi,i,'ation,  see  the  Delaware  (181MJ).  ICl  U.  S.  4.59. 

As  to  maritime  ceremoidal.  see  Calvo.  I.  S§  20C>-;?4."> :  Ileffter,  §  194-107; 
Kliiher.  Droit  des  (Jens  Moderne  de  rKurojie.  §  89-122. 

The  I'nited  States,  in  1S97.  while  complaitnn^  of  the  action  of  the  captain 
of  tile  Spanish  cruiser  lichin  Mirc((lrs.  in  tirinjr  uintn  the  American 
steamer  \'til<n'iii.  near  (Juantanamo.  Cuha.  in  order  to  make  her  show 
her  (laj;.  said  :  "  I  am  pre|tared  to  .ulnut.  in  all  frankness,  that  dur- 
inj;  the  continuance  of  a  civil  war  such  as  is  now  flajrrant  in  the 
island  of  Cuba,  it  would  he  extremely  convenient,  and  jn'rhajts  a  pru- 
dent prec.iution.  for  American  sliii)s  h>;:itimately  resortinjr  to  Cuban 
waters  to  show  their  Haj;  when  sijrhtinjr  a  Sj)anish  cruiser  within  the 
rj-mile  limit,  even  if  a  formal  s.alute  be  not  called  for  by  the  ordinary 
code  of  maritime  ceremoni.d  ;  "  and  it  was  stated  that  advice  to  this 
effect  would  be  jriven.  (.Mr.  Sherman.  Sec.  of  St.ite.  to  Mr.  Dupuy  de 
Lome.  Span.  min..  .Time  21.  1S97.  For.  Pel.  1S97.  ."»o."».) 

As  to  the  case  of  the  Mlianrti.  see  For.  Pel.  1.89.5.  II.  1177-1185:  and  the 
animal  messajre  of  I'resident  Cleveland  of  Dec.  2.  1895.  lAjr.  Pel.  189-5, 
I.  xxxiii. 


§  14^4.]  THE    MARGINAL    SEA.  701 

In  a  series  of  resolutions  adopted  by  the  Institnt  de  Droit  Inter- 
national, at  Paris,  in  189-1.  it  \Yas  laid  down  (art.  5)  that  all  ships 
without  distinction  have  the  riofht  of  innocent  passage  throu<rh  the 
territorial  sea,  subject  to  the  rijrht  of  belligerents  to  refrulate  and  for 
purposes  of  defense  even  to  bar  such  passage,  and  subject  also  to  the 
rii^ht  of  neutrals  to  regulate  the  passage  of  ships  of  war  of  all 
nationalities. 

As  to  jurisdiction  over  passing  vessels,  the  following  resolutions 
were  adopted  : 

"Art.  <).  Crimes  and  ott'ences.  conunitted  on  foreign  ships  passing 
through  territorial  waters  by  j)ersons  on  board  such  sliips  against 
persons  or  things  also  on  board,  are.  as  such,  outside  the  jurisdiction 
of  the  bordering  state,  unless  they  involve  a  violation  of  the  rights  or 
interests  of  the  boi'dering  state,  or  of  its  inhabitants  Avho  are  neither 
members  of  the  crew  or  jjassengers. 

"Aht.  7.  Shii)s  traversing  territoi'ial  waters  must  conform  to  special 
regulations  of  the  bordering  state  in  the  interest  or  for  the  security  of 
navigation  and  maritime  police. 

"Aht.  8.  Ships  of  all  nationalities,  by  tlie  fact  of  being  in  territorial 
Avaters.  unless  only  passing  through,  are  subject  to  the  jurisdiction  of 
the  bordering  state. 

"  The  bordering  state  may  continue  on  the  high  seas  a  pursuit  begun 
in  territorial  waters,  to  arrest  and  try  a  ship  which  has  committed  a 
violation  of  law  within  the  limits  of  those  waters.  In  case  of  capture 
on  the  high  seas,  the  fact  shall  be  made  known  without  delay  to  the 
state  whose  flag  she  bears.  The  ])ursuit  is  interru])te(l  the  moment  the 
shij)  enters  the  territorial  waters  of  her  own  or  of  a  third  country. 
The  right  of  i)ursuit  ceases  when  the  vessel  enters  a  port  of  her  own  or 
of  a  tiiird  i)owei\ 

"Art.  1>.  The  i)articular  situation  of  ships  of  Avar  and  of  those 
assimilated  to  them  is  res(>rve(l."' 

liistiHit  (Ic  Dn.it  Intcnintioiial.  Aiinuaiiv  (1804-0.")),  XIII.  .'{29. 

l>y  the  couunon  law.  title  to  the  soil  under  tide  waters,  below  high- 
water  mai-k.  unless  private  rights  in  it  have  l)een  acquired  by  grant 
or  |)rescri|)tioii.  is  in  the  king,  subject  to  the  })ublic  rights  of  naviga- 
tion and  fishing.  U[)on  the  .Vmerican  revolution,  the  title  to  and 
dominion  over  tide  waters  and  the  lands  under  them  vested  in  the 
several  States,  tlioiigli  certain  riglits  were  aftei'wards  surrendered 
by  the  Constitution  to  the  United  States.  The  United  States,  on 
ac(juiring  territory,  whethei'  by  cession  from  one  of  the  States  or  by 
treaty  with  a  foreign  country,  or  by  discovery  and  settlement,  takes 
the  titk'  and  the  dominion  of  lands  beh)w  high-water  mark  for  the 
Ijenefit  of  tlie  wliole  jieople,  and  in  trust  for  the  future  States  to  be 
created  out  of  the  territory ;   although,  while  holding  the  country  as 


702  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  145. 

torritorv,  it  possesses  all  the  powers  both  of  national  and  municipal 
<rovernnient,  and  may  <jrant.  for  appro})riate  purposes,  titles  to  or 
rights  in  the  soil  below  hi^h-water  mark.  Congress,  however,  has 
not  undertaken  bv  general  laws  to  disjjose  of  such  lands  in  the  terri- 
tories, l)ut,  unless  in  ease  of  some  international  duty  or  public 
exigency,  has  left  such  waters  and  lands  to  the  control  of  the  States, 
ies])ectively,  when  admitted  into  the  Union.  Hence  it  was  held 
that  a  donation  land  claim,  bounded  by  the  Columbia  River,  acquired 
under  the  act  of  Congress  of  Sept.  27,  IS,")!),  c.  7(),  while  Oregon  was 
a  Territory,  passed  no  title  to  lands  below  high-water  mark,  as 
against  a  subsequent  grant  from  the  State  of  Oregon,  pursuant  to  its 
statutes. 

lively  r.  Bowlhy  (1S!»4).  1.".2  T".  S.  1.  See  also  Hardin  r.  .Jordan  (18!)!). 
140  r.  S.  ;t71  ;  Mitchell  r.  Sniak'  (1891),  id.  4(H5 ;  liaer  r.  Morau 
Brothers  ("o.  (1S!I4),  I.j3  IT.  S.  L'ST  :  Lowndos  r.  Huntington  (1894), 
153  U.  S.  1  ;    St.  Louis  r.  Kutz  (1891),  138  U.  S.  220,  250. 

(2)   POSITIOX    OF    THE    UNrfEI)    STATES. 
§    145. 

"  The  President  of  the  Cnited  States,  thinking  that,  iK^fore  it  shall 
be  finally  decided  to  what  distance  from  our  seashores  the  territorial 
protection  of  the  United  States  shall  be  exercised,  it  Avill  be  ])roper 
to  enter  into  friendly  conferences  and  explanations  with  the  poAvers 
chiefly  interested  in  the  navigation  of  the  seas  on  our  coasts,  and 
ndying  that  convenient  occasions  may  be  taken  for  these  hereafter, 
finds  it  necessary  in  the  meantime  to  fix  provisionally  on  some  dis- 
tance for  the  ])resent  government  of  these  questions.  You  are  sensi- 
ble that  very  different  opinions  and  claims  have  been  heretofore 
advanced  on  this  subject.  The  greatest  distance  to  which  any 
resj)ectal)le  assent  among  nations  has  been  at  any  time  given,  has 
l)eeu  the  extent  of  the  human  sight,  estimated  at  upwards  of  twenty 
miles,  and  the  smallest  distance.  I  believe,  claimed  by  any  nation 
whatever,  /v  f/ic  iitniosf  roiu/c  of  a  <-(uni(>)i  hall,  usually  stated  at  one 
sea  league.  Some  intermediate  distances  have  also  been  insisted  on, 
and  that  of  three  sea  leagues  has  some  authority  in  its  favor.  The 
charactei'  of  our  coast,  I'eiiuirkable  in  considerable  parts  of  it  for 
admitting  no  vessels  of  size  to  j)ass  near  the  shores,  would  entitle  us, 
in  reason,  to  as  bi-oad  a  margin  of  ])i"()tected  navigation  as  any 
nation  whatever.  Iveserving.  however,  the  ultimate  extent  of  this 
foi-  future  deliberation,  the  Pi'esident  gives  instructions  to  the  officers 
acting  under  his  authority  to  consider  those  heretofore  given  them  as 
restrained  for  the  present  to  the  distance  of  one  sea  league  or  three 
ge()gra|)hical  miles  fi-om  the  seashores.  This  distance  can  admit  of 
no  ()])])<)sition.  as  it   is  recognized  by  treaties  between  some  of  the 


§  145.]  THE    MARGINAL    SEA,  703 

powers  with  whom  Ave  are  connected  in  connnerce  and  navigation, 
and  is  as  little,  or  less,  than  is  claimed  by  any  of  them  on  their  own 
coasts. 

"  For  the  jurisdiction  of  the  rivers  and  bays  of  the  United  States, 
the  laws  of  the  several  States  are  understood  to  have  made  provision, 
and  they  are.  moreover,  as  being  landlocked,  within  the  body  of  the 
United  States." 

Mr.  Jefferson.  Sec.  of  State,  to  Mr.  Ilainniond.  Brit.  niin..  Nov.  8.  1793, 
Brit.  Counter  Case  and  Papers,  (Geneva  Arbitration.  American 
reprint.  .")53. 
A  similar  note  was  senr  on  the  same  day  to  M.  Genet,  the  French  min. 
ister.  (Am.  State  Papers.  For.  Rel.  I.  183;  Waifs  Am.  State 
Papers.  I.  lit.-).) 
Corresi)onding  instructions  were  jriven  to  the  district  attorneys,  Nov.  10, 

1703.      (MS.  Dom.  Let.) 
See.  also,  circular  of  Mr.   Ihunilton,   Secretary  of  the  Treasury,  to  col- 
lectors of  customs.   Felt.    10,    I7!t4.    Brit.   Counter  Case  and  Papers, 
Geneva  Arbitration.  Am.  reprint,  .508. 

'"  The  President  [Mr.  Jefferson,  in  an  informal  conversation]  men- 
tioned a  late  act  of  hostility  committed  l)v  a  French  privateer  near 
Charleston.  S.  C.  and  said  we  ought  to  assume,  as  a  principle,  that 
the  neutrality  of  our  territory  should  extend  to  the  Gulf  Stream, 
which  was  a  natural  boiuKlarv.  and  within  which  we  ought  not  to  suf- 
fer any  hostility  to  be  committed.  Mr.  Gaillard  observed  that  on  a 
former  occasion  in  Mr.  Jefferson's  correspondence  with  Genet,  and  by 
an  act  of  Congress  at  that  period,  we  had  seemed  only  to  claim  the 
usual  distance  of  three  miles  from  the  coast;  but  the  President  replied 
that  he  had  then  assimied  that  principle  because  Genet,  by  his  intem- 
perance, forced  us  to  fix  on  some  point,  and  we  were  not  then  prepared 
to  assert  the  claim  of  jurisdiction  to  the  extent  we  are  in  reason  en- 
titled to:  but  he  had  taken  care  to  reserve  this  subject  for  further  con- 
.'^ideration  with  a  view  to  this  same  doctrine  for  Avhich  he  now  con- 
tends." 

Meiiioifs  of  .7.  (}.  .\dams.  \.  :')7.">-37< I. 

"As  to  the  jurisdiction  exercised  by  the  United  States  over  the  sea 
contiguous  to  its  shores,  all  nations  claim  and  exercise  such  a  jurisdic- 
tion, and  all  writers  admit  this  claim  to  be  well  founded;  and  they 
luive  differed  in  ()i)inion  only  as  to  the  distance  to  which  it  may  e.xtend. 
Let  us  see  whether  France  has  claimed  a  greater  or  less  extent  of  do- 
minion over  the  sea  than  the  United  Sates.  Valin.  the  King's  advocate 
at  Eochelle.  in  his  new  Commentary  on  the  ^larine  Laws  of  France, 
published  first  in  1701.  and  again  l)v  approbation  in  ITTf).  (Book  V., 
title  1.)  after  mentioning  the  opinions  of  many  different  writers  on 
public  law  on  this  subject,  says:  'As  far  as  the  distance  of  two  leagues 
the  sea  is  the  dominion  of  the  sovereign  of  the  neighboring  coast;  and 


704  NATIONAL  jurisdiction:  territorial  limits.       [§145. 

that  whether  there  Ih'  soinulin^s  there  or  not.  It  is  proper  to  observe 
this  method  in  favor  of  states  whose  coasts  are  so  high  that  there  are 
no  soundings  close  to  the  shore,  l)ut  this  does  not  prevent  the  extension 
of  the  dominion  of  the  sea.  as  veil  hi  rcs/wrf  to  jurisdiction  as  to  fish- 
criry.  to  a  greater  distance  by  particuhir  treaties,  or  the  rule  herein- 
before mentioned,  which  extends  dominion  as  far  as  there  are  sound- 
ings, or  as  far  as  the  reach  of  a  cannon  shot;  irliirh  is  the  ride  at 
jire-se/tt  uitii'erxalJj/  (icknoirJedc/ed.'  "  The  etlect  of  this  dominion." 
the  same  author  says.  *  according  to  the  |)rinciples  of  Puffendorf. 
which  are  incontestable,  is.  that  every  sovereign  has  a  right  to  protect 
foreign  conmierce.  in  his  dominions,  as  well  as  to  secure  it  from  insult, 
liy  j)reventing  others  from  approaching  nearer  than  a  certain  dis- 
tance." In  extending  our  dominion  over  the  sea  to  one  league,  we  have 
not  extended  it  s()  far  as  the  example  of  France  and  the  other  powers 
of  Eurojie  would  have  justified.  They,  therefore,  can  have  no  right 
to  comj^lain  of  our  conduct  in  this  respect." 

Ilauiiltoii.  in  "The  Answer."  Ilainilton's  Works.  Lodjre's  ed..  VI.  218. 


"Our  jurisdiction  .  .  .  has  been  fixed  (at  least  for  the  pur- 
pose of  regulating  the  conduct  of  the  government  in  regard  to  any 
events  arising  out  of  the  present  P^uropean  war)  to  extend  three 
geographical  miles  (or  nearly  three  and  a  half  P^nglish  miles)  from 
our  shores:  with  the  excei)tion  of  any  waters  or  bays  which  are  so 
landlocked  as  io  be  unquestionably  within  the  jurisdiction  of  the 
United  States,  be  their  extent  what  they  may."" 

Mr.  IMckerinj:.  Sec  of  State,  to  the  Lieut.  Governor  of  Virfiinhi.  Sept.  2, 
line,  ft  MS.  Doin.  Let.  2SL 

This  letter  related  to  a  coniijlaint  of  the  master  of  the  American  ship 
Kliza  that  he  liad  heen  captured  h.v  the  British  friirate  ThctiH  within 
the  territorial  watei-s  of  the  T'nited  States.  The  distance  of  tlie 
<-apture  from  land  hein.i;.  however,  indetinitel.v  alleged.  Mr.  rickerin'.i 
took  the  jrround  that  the  (Jovernment  could  not  "  authoritativel.v 
interfere"  without  further  evidence  on  the  (inestion,  hut  that  the 
most  that  could  he  done  under  the  circumstances  was  to  exhihit  the 
liaiiers  t<»  the  British  minister,  who  had  undertaken  t(t  address  the 
conmiander  of  the  Thctix  in  a  cautionar.v  sense. 

"There  could  surely  be  no  jjretext  for  allowing  less  than  a  marine 
league  from  the  shore,  that  being  the  narrowest  allowance  found  in  any 
authorities  on  the  law  of  nations.  If  any  nation  can  fairly  claim  a 
greater  extent  the  United  States  have  pleas  which  cannot  be  rejected; 
and  if  any  nation  is  more  j)artictilarly  bound  i)y  its  own  example  not 
to  contest  our  claim.  (Jreat  Britain  mu-t  bi'  so  by  the  extent  of  her  own 
claims  to  jui'isdiction  on  the  seas  which  surround  her.  It  is  ho^>ed.  at 
l<'ast.  that  witiiin  the  extent  of  one  league  you  will  be  able  to  obtain  an 
etl'ectiuil  prohibition  of  British  ships  of  war  from  repeating  the  irreg- 


§  145.]  THE    MARGINAL    SEA.  705 

ularities  which  have  so  much  vexed  our  commerce  and  provoked  the 
public  resentment,  and  against  which  an  article  in  your  instructions 
emphatically  provides.  It  cannot  be  too  earnestly  pressed  on  the 
British  Government  that  in  applying  the  remedy  copied  from  regula- 
tions heretofore  enforced  against  a  violation  of  the  neutral  rights  of 
British  harbors  and  coasts,  nothing  more  will  be  done  than  what  is 
essential  to  the  preservation  of  harmony  between  the  two  nations.  In 
no  case  is  the  temptation  or  the  facility  greater  to  ships  of  war  for 
annoying  our  commerce  than  in  their  hovering  on  our  coasts  and  about 
our  harbors;  nor  is  the  national  sensibility  in  any  case  more  justly  or 
more  highly  excited  than  by  such  insults.  The  communications  lately 
made  to  Mr.  Monroe,  with  respect  to  the  conduct  of  British  command- 
ers even  within  our  own  waters,  will  strengthen  the  claim  for  such  an 
arrangement  on  this  subject,  and  for  such  new  orders  from  the  British 
(xovernment  as  will  be  a  satisfactory  security  against  future  causes  of 
complaint." 

Mr.  Madison,  Sec.  of  State,  to  Messrs.  Monroe  and  Pinkney,  ministers  to 
England.  Feb.  3,  1807,  Am.  State  Papers,  For.  Rel.  III.  15.3,  155. 

"  The  exclusive  jurisdiction  of  a  nation  extends  to  the  ports,  har- 
bors, bays,  mouths  of  rivers,  and  adjacent  parts  of  sea  inclosed  by 
headlands;  and,  also,  to  the  distance  of  a  marine  league,  or  as  far  as  a 
cannon-shot  will  reach  from  the  shore  along  all  its  coasts."  Within 
these  limits  the  sovereign  of  the  mainland  may  arrest,  by  due  process 
of  law,  alleged  offenders  on  board  of  foreign  merchant  ships. 

Mr.  Buchiuuui.  Sec.  of  State,  to  Mr.  Jordan,  Jan.  2.S,  184it,  37  MS.  Dom. 
Let.  98.     See,  to  the  same  effect,  Gallatin's  Writings,  II.  186. 

'*  This  Government  adheres  to,  recognizes,  and  insists  upon  the  prin- 
ciple that  the  maritime  jurisdiction  of  any  nation  covers  a  full  marine 
league  from  its  coast,  and  that  acts  of  hostility  or  of  authority  within 
a  marine  league  of  any  foreign  country  by  naval  officers  of  the  United 
States  are  strictly  prohibited,  and  will  bring  upon  such  officer  the  dis- 
pleasure of  this  Government." 

Mr.  Seward.  Sec.  of  State,  to  Mr.  Welles,  Sec.  of  the  Navy.  Aug.  4.  18(i2. 

58  MS.  Dom.  Let.  15. 
See.  further,  Mr.  Seward  to  Mr.  Welles.  Oct.  10,  18()2.  58  MS.  Dom.  Let.  324. 

"  There  was  reason  to  hope  that  the  practice  which  formerly  pre- 
vailed with  powerful  nations  of  regarding  seas  and  bays  usually  of 
large  extent  near  their  coast  as  closed  to  any  foreign  commerce  or 
fishery  not  specially  licensed  by  them,  was,  without  exception,  a  pre- 
tension of  the  past,  and  that  no  nation  would  claim  exemption  from 
the  general  rule  of  public  law  which  limits  its  maritime  jurisdiction 

H.  Doc.  551 15 


706  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  146, 

to  a  marine  league  from  its  coast.     We  should  particularly  regret  if 
Russia  should  insist  on  any  such  pretension." 

Mr.  Fish.  Sec.  of  State,  to  Mr.  Boker.  iniu.  to  Russia,  Dec.  1,  1875,  MS. 
Inst.  Russia.  XV.  5.'i(>. 

(3)     DISCUSSION    AS    TO   CUBA. 

§  146. 

"  The  undersigned.  Secretary  of  State  of  the  United  States,  having 
taken  the  instructions  of  the  President,  will  perform  the  duty  of 
answering  the  note  which  was  addressed  to  the  undersigned  oi>the  8th 
of  October  by  His  Excellency  Senor  (labriel  (x.  Tassara,  minister 
plenipotentiary  of  Her  Catholic  Majesty  the  Queen  of  Spain. 

'*  In  that  paper  Mr.  Tassara  informs  the  undersigned  that  Her 
Catholic  Majesty's  (iovernment  is  surprised  that  a  United  States 
naval  officer  cruising  in  the  waters  of  Cuba  has  fallen  into  the  error 
of  claiming  that  the  jurisdictional  belt  of  the  island  of  Cuba  does  not 
extend  beyond  three  miles,  whereas  the  Government  has  fixed  the 
limit  at  six  miles  on  the  open  sea.  Mr.  Tassara  proceeds  under  his 
instructions  to  say  that  in  fixing  that  limit  Her  Catholic  Majesty's 
Government  has  conformed  to  all  the  rides  of  the  law  of  nations. 
Mr.  Tassara  next  observes  that  the  principle  Avhich  is  generally  recog- 
nized is  that  maritime  jurisdiction  extends  to  the  range  of  a  cannon 
ball,  and  that  even  abiding  by  this  principle,  Avhich  every  nation  has 
modified  at  its  Avill.  the  belt  fixed  by  Spain  goes  no  farther  than  the 
modern  improvements  in  artillery.  Mr.  Tassara,  pursuing  the  sub- 
ject, remarks  that  no  international  compact  is  required  for  the  deter- 
mination or  recognition  of  a  jurisdiction  which  is  not  at  all  excessive, 
but  a  special  treaty  might  he  necessary  for  making  an  exception  in 
favor  of  any  nation  and  no  such  treaty  exists  between  Spain  and  the 
United  States.  Mr.  Tassara  adds  that  the  United  States  are  so  much 
the  more  obliged  to  respect  this  jH'inciple  as  he  thinks  it  must  be  evi- 
dent to  the  undersigned  that  the  jurisdictional  belt  claimed  by  the 
United  States  in  some  cases  extends  many  miles  farther  than  that 
designated  by  Spain. 

"  Mr.  Tassara  concludes  with  informing  the  imdersigned  that  Her 
Catholic  Majesty's  (iovernment  trusts  that  the  United  States  Avill 
cause  the  conunanfling  officers  of  their  naval  forces  in  the  Gidf  to 
understand  that  the  jurisdictional  l)elt  of  the  island  of  Cuba  extends 
to  six  miles  on  the  open  sea,  and  that  only  beyond  that  limit  is  it 
allowed  to  them  to  exercise  any  act  which  may  l>e  in  opposition  to  the 
rights  of  Spanish  authority,  and  that  thus  all  misunderstanding  will 
cease,  and  the  good  relations  of  the  two  countries  will  not  be  liable  to 
be  disturbed  by  causes  which  ought  entirely  to  disappear. 


§  146.]  THE    MARGINAL    SEA.  707 

"■  The  undersigned  would  observe,  in  the  first  place,  that  there  are 
two  principles  bearing  on  the  subject  which  are  universally  admitted, 
namely,  first,  that  the  sea  is  open  to  all  nations,  and  secondly,  that 
there  is  a  portion  of  the  sea  adjacent  to  every  nation  over  which  the 
sovereignty  of  that  nation  extends  to  the  exclusion  of  every  other 
political  authority. 

"A  third  principle  bearing  on  the  subject  is  also  well  established, 
namely,  that  this  exclusive  sovereignty  of  a  nation,  thus  abridging  the 
universal  liberty  of  the  seas,  extends  no  farther  than  the  power  of  the 
nation  to  maintain  it  by  force,  stationed  on  the  coast,  extends.  This 
principle  is  tersely  expressed  in  the  maxim  Terrce  dominium  flnitur 
vM  f^nitur  armarum  ris. 

"  But  it  must  always  be  a  matter  of  uncertainty  and  dispute  at  what 
point  the  force  of  arms  exerted  on  the  coast  can  actually  reach.  The 
publicists  rather  advanced  towards  than  reached  a  solution  when 
they  laid  down  the  rule  that  the  liuiit  of  the  force  is  the  range  of  a 
cannon-ball.  The  range  of  a  cannon:ball  is  shorter  or  longer  accord- 
ing to  the  circumstances  of  projection,  and  it  must  be  always  liable 
to  change  with  the  improvements  of  the  science  of  ordnance.  ^  Such 
uncertainty  upon  a  point  of  jurisdiction  or  sovereignty  would  be  pro- 
ductive of  many  and  endless  controversies  and  conflicts.  A  more 
practical  limit  of  national  jurisdiction  upon  the  seas  was  indis- 
pensably necessary,  and  this  was  found,  as  the  undersigned  thinks,  in 
fixing  the  limit  at  three  miles  from  the  coast.  This  limit  Avas  early 
proposed  by  the  publicists  of  all  maritime  nations.  "While  it  is  not 
insisted  that  all  nations  have  accepted  or  acquiesced  and  bound  them- 
selves to  abide  by  this  rule  when  applied  to  themselves,  yet  three 
points  involved  in  the  subject  are  insisted  upon  by  the  United  States : 
First,  that  this  limit  has  been  generally  recognized  by  nations;  sec- 
ond, that  no  other  general  rule  has  been  accepted ;  and  third,  that  if 
any  state  has  succeeded  in  fixing  for  itself  a  larger  limit,  this  has 
been  done  by  the  exercise  of  maritime  power,  and  constitutes  an 
exception  to  the  general  understanding  which  fixes  the  range  of  a 
cannon-shot  (when  it  is  made  the  test  of  jurisdiction)  at  three  miles. 
So  generally  is  this  rule  accepted  that  writers  commonly  use  the  two 
expressions,  of  a  range  of  cannon-shot  and  three  miles,  as  equivalents 
of  each  other.  In  other  cases  they  use  the  latter  expression  as  a  substi- 
tute for  the  former.  Thus  Wildman.  in  his  '  Plain  directions  to  naval 
officers  as  to  the  law  of  search,  capture,  and  prize  '  (page  1'2.  ed.  Lon- 
don. 1854).  says:  'The  capture  of  vessels  within  the  territory  of  a 
neutral  state,  or  within  three  miles  of  the  coast.  ...  is  illegal  with 
respect  to  the  neutral  sovereign.' 

'*  Impressed  by  these  general  views,  the  United  States  are  not  pre- 
pared to  admit  that  Spain,  without  a  formal  concurrence  of  other 


708  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  146. 

nations,  can  exercise  exclusive  sovereignty  upon  the  open  sea  beyond 
a  line  of  three  miles  from  the  coast,  so  as  to  deprive  them  of  the  rights 
conmion  to  all  nations  upon  the  open  sea. 

'•  The  United  States  admit  that  they  have  a  temporary  interest 
(during  the  present  insurrection)  to  maintain  a  broad  freedom  of  the 
seas,  so  as  to  render  their  naval  operations  as  effective  as  may  be 
consistent  with  the  law  of  nations, 

''  The  United  States  admit,  moreover,  that  they  favor  the  prin- 
ciple of  enlarging  the  liberty  of  the  seas,  in  their  general  policy,  now 
as  heretofore.  But  they  declare,  at  the  same  time,  that  they  enter- 
tain no  jealousy  of  Spain.  It  need  not  be  said  anew  that  they  have 
no  hostile  designs  against  her,  and  that  they  have  no  policy  which  is 
inconsistent  with  her  retention  of  the  island  of  Cuba,  and  her  main- 
tenance of  her  authority  in  that  important  part  of  her  colonial 
dominions.  They  have,  therefore,  not  been  hasty  in  adopting  the 
conclusion  which  the  undersigned  has  announced  upon  the  question 
which  has  thus  been  presented  to  them  by  Her  Catholic  Majesty's 
Government. 

"  Tlu\v  have  even  taken  the  pains  to  recur  to  the  correspondence 
which  has  heretofore  passed  between  the  two  countries  to  obtain  such 
light  upon  the  subject  as  might  be  derived  from  that  source. 

"  Spain  ])resented  substantially  the  same  claim  to  this  Government 
in  the  case  of  the  El  Dorado  in  185(),  and  Mr.  "William  L.  Marcy, 
then  Secretary  of  State,  by  direction  of  the  President,  announced  that 
the  Ignited  States  could  not  concede  the  extension  of  Spanish  sov- 
ereignty bcA'ond  three  miles  in  the  seas  which  surround  the  island  of 
Cuba. 

"  Upon  the  grounds  which  have  been  set  forth,  the  President  feels 
himself  obliged  to  decline  to  give  to  the  naval  commanders  of  the 
Ignited  States  the  instructions  proposed  to  him  by  Her  Catholic  Maj- 
esty's (lovernment. 

'•  In  concluding,  the  undersigned  thinks  it  is  not  unimj^ortant  to 
explain  to  Mr.  Tassara  the  delay  which  has  attended  this  reply. 
AVhen  Mr.  Tassara 's  note  was  received,  the  undersigned  could  not 
close  his  eyes  against  the  fact  that  the  question  presented  by  Mr. 
Tassara,  although  one  of  confessed  importance,  had  not  yet  actively 
arisen  in  any  proceedings  or  transactions  which  had  occurred  between 
the  authorities  of  the  two  countries,  and  that  therefore  it  was  in  one 
sense  a  speculative  one.  The  undersigned,  nevertheless,  proposed  to 
himself  to  enter  upon  the  subject  in  a  spirit  of  entire  frankness  and 
cordiality.  At  that  moment,  hoAvever,  the  case  of  the  destruction  of 
the  so-called  steamer  Blanche  or  General,  Rush,  by  the  United  States 
war  steamer  Moiifgomery,  as  was  alleged  within  the  waters  of  Cuba, 
was  brought  to  the  knowledge  of  this  Government  by  Mr.  Tassara. 


§  146.]  THE    MARGINAL   SEA.  709 

With  the  imperfect  information  concerning  that  subject  which  this 
Government  has  until  recently  had,  it  seemed  probable  that  it  might 
not  only  appear  but  might  even  be  a  material  point  in  that  case  that 
the  so-called  Blanche  was  fired  upon  by  the  Montgomery  more  than 
three  miles  from  and  within  six  miles  of  the  coast  of  Cuba.  It  seemed 
probable  to  the  undersigned  that,  in  that  case,  he  would  be  obliged  to 
examine  in  direct  connection  with  the  case  of  the  so-called  Blanche^ 
the  claim  of  Spain  to  a  jurisdiction  outside  of  three  statute  miles  in 
the  waters  which  surround  the  island  of  Cuba,  and  so  that  instead  of 
a  speculative  one  the  question  would  have  become  inevitably  a  prac- 
tical one.  It  now  appears  that  the  injuries  complained  of  by  Spain, 
so  far  as  they  have  been  entertained  in  the  case  of  the  so-called 
Blanche^  were  committed  on  the  very  shore  of  the  island  of  Cuba, 
and  within  the  universally  conceded  and  unquestioned  jurisdiction  of 
Spain.     The  reason  for  the  delay  of  this  note  has  thus  passed  away." 

Mr.   Seward.   See.  of  State,  to  Mr.  Tassara,   Span.   min.   Dec.   10,   1862; 

MS.  Notes  to  Spain,  VII.  .331. 
See  Mr.  Seward.  See.  of  State,  to  Mr.  Welles.  Sec.  of  Navy,  Oct.  Kt,  1862; 

r>8  MS.  Doni.  Let.  .324. 

"  The  undersigned,  Secretary  of  State  of  the  United  States,  has 
the  honor  to  recur  to  the  subject  of  the  claim  of  the  Government  of 
Her  Catholic  Majesty  to  a  maritime  jurisdiction  of  six  miles,  in  the 
waters  which  surround  the  island  of  Cuba.  The  most  deliberate 
and  respectful  consideration  has  been  bestowed  upon  the  arguments 
in  support  of  that  claim  which  have  been  submitted  to  him  by  Seilor 
(iabriel  G.  Tassara.  Her  Catholic  Majesty's  minister  plenipoten- 
tiary near  the  United  States, 

"  There  seems  to  be  an  entire  agreement  between  Mr.  Tassara 
and  the  undersigned  upon  the  proposition  that  Spain  has  an  undoubted 
jurisdiction  to  some  extent  over  the  sea  adjacent  to  the  island  of 
Cuba.  It  is  upon  the  line  of  this  exclusive  maritime  jurisdiction 
that  the  question  which  is  to  be  considered  arises.  The  undersigned 
has  maintained  as  a  general  principle,  announced  by  publicists  and 
accepted  by  maritime  powers,  that  the  jurisdiction  of  maritime 
nations  extends  three  miles  over  the  seas  to  their  coasts. 

••  Mr,  Tassara  is  not  understood  to  deny  this  proposition.  But  he 
insists  that  this  principle  has  its  exceptions,  and  that  some  states, 
and  among  them  the  United  States,  habitually  claim  and  exercise  a 
wider  jurisdiction.  While  this  fact  is  cheerfully  admitted,  it  does 
not  seem  to  the  undersigned  conclusive  in  favor  of  the  claim  of 
Spain.  The  exceptions  are  so  few  and  so  special  that  they  do  not 
disturb  or  impair  the  general  principle  that  three  miles  is  the  legal 
l)oundarv  of  external  maritime  jurisdiction.  Mr.  Tassara  seems  to 
assume,  however,  that  as  there  are  some  existing  and  acknowledged 


710  NATIONAL   JURISDICTION:    TERRITORIAL.   LIMITS.  [§146. 

exceptions  to  that  principle,  so  there  are  also  other  existing  excep- 
tions which  ought  to  he  acknowledged,  and  that  the  jurisdiction  for 
which  he  is  now  contending  is  such  an  exception.  He  very  truly 
assumes  that  wherever  such  an  exception  actually  exists,  evidence 
of  it  will  be  found  in  the  statutes  or  decrees  of  the  maritime  poAver 
which  asserts  it.  As  such  evidence,  he  quotes  several  royal  decrees 
of  Spain,  some  ancient  and  others  modern,  which  declare  that  the 
jurisdiction  of  Spain  in  the  waters  which  surround  her  coasts  extends 
to  the  limit  of  six  miles. 

"  Nevertheless  it  cannot  be  admitted,  nor  indeed  is  Mr.  Tassara 
understood  to  claim,  that  the  mere  assertion  of  a  sovereign,  by  an  act 
of  legislation,  however  solemn,  can  have  the  effect  to  establish  and  fix 
its  external  maritime  jurisdiction.  His  right  to  a  jurisdiction  of 
three  miles  is  derived  not  from  his  own  decree  but  from  the  law  of 
nations,  and  exists  even  though  he  may  never  have  proclaimed  or 
asserted  it  by  any  decree  or  declaration  whatsoever.  He  cannot,  by  a 
mere  decree,  extend  the  limit  and  fix  it  at  six  miles,  because,  if  he 
could,  he  could  in  the  same  manner,  and  upon  motives  of  intere'^t, 
ambition,  or  even  upon  caprice,  fix  it  at  ten,  or  twenty,  or  fifty  miles, 
without  the  consent  or  acquiescence  of  other  powers  which  have  a 
common  right  Avith  himself  in  the  freedom  of  all  the  oceans.  Such  a 
pretension  could  never  be  successfully  or  rightfully  maintained.  The 
statutes  which  ^Ir.  Tassara  has  recited  are  therefore  regarded  as 
showing  what  certainly  is  by  no  means  unimportant,  that  Spain  at  an 
early  day  asserted,  and  has  on  different  occasions  since  that  time 
reasserted,  in  her  domestic  legislation,  a  claim  to  an  exceptional  juris- 
diction of  three  miles  in  addition  to  the  three  miles  of  jurisdiction 
conceded  by  the  law  of  nations. 

"A  claim  thus  asserted  and  urged  must  necessarily  be  now  respected 
and  conceded  by  the  United  States,  if  it  could  l)e  shown  that  on  its 
l>eing  brought  to  their  notice  they  had  acquiesced  in  it.  or  that  on  its 
l>eing  bi'ought  to  the  notice  of  other  powers  it  had  been  so  wideW 
conceded  by  them  as  to  imply  a  general  recognition  of  it  by  the  mari- 
time i)owers  of  the  v  orld.  It  is  just  here,  however,  that  the  claim  of 
Spain  seems  to  need  suj)port.  Nations  do  not  equally  study  each 
other's  statute  l)ooks.  and  are  not  chai'geable  with  notice  of  national 
pretensions  resting  upon  foreign  legislation.  The  undersigned  can- 
not admit  that  this  claim  of  Spain  to  a  maritime  jurisdiction  of  six 
miles  was  recognized  or  admitted  by  the  United  States  in  the  treaty 
of  friendshij),  amity,  and  connnerce  between  the  United  States  and 
Sj)ain  which  was  celebrated  in  1795,  insomuch  as  there  is  no  evidence 
that  this  peculiar  and  exceptional  claim  of  maritime  jurisdiction  was 
then  brought  by  the  one  party  to  the  knowledge  of  the  other.  The 
case  of  the  bJl  Dorddo  seems  to  be  the  onlv  one  in  which  this  claim  of 


§  146.]  THE    MARGINAL    SEA.  711 

Spain  has  been  brought  to  the  notice  of  this  Government.  In  regard 
to  that  case,  all  that  Mr.  Tassara  is  understood  to  insist  upon' is  that 
the  Spanish  Government  did  not  renounce  the  claim,  nor  renew  it, 
while  it  is  not  denied  that  this  (iovernment  declined  to  concede  it. 

'"■  Within  the  period  which  has  elapsed  since  the  date  of  the  first 
I'oyal  decree  asserting  the  claim  to  which  Mr.  Tassara  has  directed 
the  attention  of  the  undersigned,  there  have  been  many  and  long 
periods  of  naval  war,  but  the  undersigned  has  not  been  given  to 
understand  that  any  maritime  power  having  been  made  actually 
acquainted  with  the  claim  of  Spain  to  a  jurisdiction  of  six  miles 
around  the  island  of  Cuba  has  acquiesced  therein,  or  recognized  the 
same. 

"  It  results  from  these  remarks,  that  while  it  is  admitted  that  on  the 
part  of  Spain  the  claim  is  not  one  of  new  creation,  it  is  practically 
one  that  has  only  recently  been  presented  to  the  United  States,  and 
for  aught  that  appears  is  entirely  new  to  other  maritime  powers. 

"  The  undersigned  is  far  from  intimating  that  these  facts  furnish 
conclusive  reasons  for  denying  the  claim  a  respectful  consideration. 
On  the  contrary,  he  very  cheerfully  proceeds  to  consider  a  farther 
argument,  derived,  as  Mr.  Tassara  supposes,  from  reason  and  justice, 
which  he  has  urged  in  respect  to  the  claim.  This  ground  is,  that  the 
shore  of  Cuba  is,  by  reason  of  its  islets  and  smaller  rocks,  such  as  to 
require  that  the  maritime  jurisdiction  of  Cuba,  in  order  to  purposes 
of  effective  defense  and  police,  should  be  extended  to  the  breadth  of 
six  miles.  The  undersigned  has  examined  what  are  supposed  to  be 
accurate  charts  of  the  coast  of  Cuba,  and  if  he  is  not  misled  by  some 
error  of  the  chart,  or  of  the  process  of  examination,  he  has  ascer- 
tained that  nearly  half  of  the  corst  of  Cuba  is  practically  free  from 
reefs,  rocks,  and  keys,  and  that  th-e  seas  adjacent  to  that  ])art  of  the 
island  which  includes  the  great  harbors  of  Cabanos.  Havana.  Matan- 
zas,  and  Santiago  are  very  deep,  while  in  fact  the  greatest  depth  of 
the  passage  between  Cuba  and  Florida  is  found  within  five  miles  of 
the  coast  of  Cuba,  off  the  harbor  of  Havana. 

"  The  undersigned  has  further  ascertained,  as  he  thinks,  that  the 
line  of  keys  which  confront  other  portions  of  the  Cuban  coast  re- 
semble, in  dimensions,  constitution  and  vicinity  to  the  mainland,  the 
Iceys  which  lie  off  the  southern  Florida  coast  of  the  United  States. 
The  undersigned  assumes  that  this  line  of  keys  is  properly  to  be 
regarded  as  the  exterior  coast  line,  and  that  the  inland  jurisdiction 
ceases  there,  while  the  nuiritime  jurisdiction  of  Srpain  begins  from  the 
exterior  sea  front  of  those  keys. 

''  In  view  of  the  considerations  and  facts  Avhich  have  been  thus 
presented,  the  undersigned  is  obliged  to  state  that  the  Govenmient  of 
the  United  States  is  not  prepared  to  admit  that  the  jurisdiction  of 


712  NATIONAL  jurisdiction:  territorial  limits.       [§146. 

Spain   in   the  waters  which  surround   the  island  of  Cuba  hiwfully 
and  rightly  extends  l^eyond  the  customary  limit  of  three  miles." 

Mr.  S»'\vard.  Sec.  of  State,  to  Mr.  Tassara,  Spanish  niiu..  Aug.  10,  1863, 
MS.  Notes  to  Span.  I^g.  VIL  407. 

See  letter  of  Mr.  liaclie,  superintendent  of  the  Coast  Survey,  to  Mr. 
Seward.  April  10,  18(U^,  MS.  Misc.  Let.,  answering  in  the  negative 
the  inquiry  made  i»y  Mr.  Seward,  January  18,  18fi.3,  whether  the 
"  contiguration  of  the  Cuban  seas  retjuired,  as  was  maintained,  an 
e.xtension  of  the  M-mile  line." 

In  a  note  of  August  J),  18('>8,  which  was  received  after  the  fore- 
going conuniMiication  was  prepared.  Mr.  Tassara  notified  Mr.  Seward 
that  the  Spanish  (lovernment  had  determined  to  insist  upon  its 
claim  by  naval  force  after  the  ensuing  October.  Mr.  Seward  at 
once  replied  that  the  United  States,  under  the  circumstances  then 
existing,  could  not  concede  the  claim  with  a  due  regard  to  its  neces- 
sities, its  rights,  or  its  national  self-respect.  He  stated,  however,  that 
the  Ignited  States  would  agree  to  refer  the  claim  to  the  examination 
of  all  the  great  maritime  states:  but  that,  as  such  a  reference  would 
be  dilatory  if  not  impractical)le.  the  President  was  willing,  subject 
to  the  constitutional  consent  of  the  Senate,  to  refer  the  question  to 
any  of  those  powers,  whether  (ireat  Britain.  France,  Belgium,  the 
Netherlands.  Ru.ssia.  I'russin.  the  ITanse  Towns.  Denmark,  or  Italy. 
Or.  if  Spain  should  prefer  it.  the  Ignited  States  would  appoint  one 
or  more  delegates  to  ccmfer  with  an  equal  number  appointed  by 
Spain :  and  these  delegates  might,  in  case  of  disagreement,  choo.se 
an  umpire,  the  decision  of  all  the  delegates  or  of  the  un)pire  to  be 
final. 

Mr,  Seward.  Sec.  of  State,  to  Mr.  Tassara.  Span,  min.,  Aug.  10.  180.3,  MS. 
Notes  to  Span.  Leg.  VII.  4i:i» 

See,  also.  Mr.  Seward  to  Mr.  Tassara.  Sejit.  2.  180:^,  id.  421. 

"T!ie  new  jthase  of  affairs  in  Mexico  creates  much  solicitude,  nor  must 
we  overlook  the  strange  attitude  which  the  Spanish  Government  has 
assuuHHl  in  regard  to  the  claim  of  maritime  jurisdiction  in  Cuba. 
In  consideration  of  these  f;icts  this  Government  is  jiressing  its  prepa 
rations  for  naval  defence  with  all  i)ossible  energy."  (Mr.  Seward, 
Sec.  of  State,  to  Mr.  Adams,  minister  to  England,  Sept.  2,  180.*},  MS. 
Inst,  to  Great  Britain.  XVI H.  rtg'X) 

See  also.  Mr.  Seward.  Sec.  of  State,  to  Mr.  ^Velles,  Sec.  of  Navy.  .July  C,, 
18(;.'i,  «;i  .MS.  Dom.  Let.  102. 

The  ttrms  of  a  convention  were  afterwards  agreed  on  for  the  sub- 
mission of  the  correspondence  to  the  King  of  the  Belgians,  in  order 
that  he  migiit,  as  arbitrator,  determine  the  question  whether  the  mari- 
time jurisdiction  of  Her  Catholic  Majesty  in  the  waters  surrounding 
the  waters  of  Cul)a  "  extends  only  three  miles,  or  w^hether  it  extends 
six  milfci  from  the  line  of  the  coast  or  of  the  islets  thereabouts." 


§  146.]  THE    MARGINAL    SEA.  713 

Mr.  Sewartl,  Sec-,  of  State,  to  Mr.  Tassara.  Span,  inin.,  Oct.  9.  1863,  MS. 
Notes  to  Span.  Lej?.  VII.  420;  Mr.  Tassara  to  -Mr.  Seward.  Dec.  9, 
1863,  MS.  Notes  from  Spain  ;  Mr.  Seward  to  Mr.  Tassara.  Dec.  14, 
and  Dec.  17,  1863,  MS.  Notes  to  Span.  Leg.  VII.  443,  444. 

The  question  never  was  submitted. 

The  Spanish  claim  of  jurisdiction  may  have  l)een  acted  on  by  the  com- 
mander of  a  Sj)anish  man-of-war  in  seizing  tlie  American  steamer 
Colonel  TjJofid  AMphuiu]!,  .Jan.  21.  1870,  from  four  to  six  miles,  as  was 
allege«l.  off  Nuevitas.  in  ('ul)a.  The  Fnitcd  States  demanded  the 
release  of  the  vessel  on  the  ground  (1)  that  she  was  .seized  on  the 
high  seas,  and  (2)  that  she  was  engaged  in  bearing  official  dispatchers 
for  the  Government.  The  Spanish  Government  replied  that  "  the  ofli- 
cers  who  made  the  ca])ture  asserted  that  it  was  made,  not  on  the  high 
seas,  but  within  the  maritime  jurisdiction  of  Spain."  but  ordered  the 
vessel  to  be  released  on  the  ground  of  her  employment  as  a  bearer 
of  official  dispatches  for  the  Fnitetl  States.  (Moore,  Int.  Arbitra- 
tions, II.  1(X)7,  1(KJ8,  1010.  1011.) 

"  The  maritime  jurisdiction  of  Spain  may  be  acknowledged  to 
extend  not  only  to  a  marine  league  beyond  the  coast  of  Cuba  itself, 
but  also  to  the  same  distance  from  the  coast  line  of  the  several  islets 
or  keys  with  which  Cuba  itself  is  surrounded.  Any  acts  of  Spanish 
authority  within  that  line  can  not  he  called  into  question,  provided 
they  shall  not  be  at  variance  with  law  or  treaties." 

Mr.  Fish.  Sec.  of  State,  to  Mr.  Korie,  Sec.  of  the  Navy.  May  18.  1869.  81 
.MS.  Dom.  Let.  1L>4. 

'•  The  instruction  from  the  foreign  office  to  Mr.  Watson,  of  the  25th 
of  September  last,  a  copy  of  which  was  communicated  by  that  gentle- 
man to  this  Department,  in  his  note  of  the  17th  of  October,  directs 
him  to  ascertain  the  views  of  this  (iovernment  in  regard  to  the  extent 
of  maritime  jurisdiction  which  can  properly  be  claimed  by  any  power, 
and  whether  Ave  have  ever  recognized  the  claim  of  Spain  to  a  six-mile 
limit  or  have  ever  protested  against  such  claim. 

"  In  reply  I  have  the  honor  to  inform  you  that  this  Government  has 
uniforndy.  under  every  administration  which  has  had  occasion  to  con- 
sider the  subject,  objected  to  the  pretension  of  Spain  adverted  to, 
upon  the  same  ground  and  in  similar  terms  to  those  contained  in  the 
instruction  of  the  Earl  of  Derby." 

Mr.  Fish,  Sec.  of  State,  to  Sir  p]dward  Thornton.  Brit,  niin.,  .Tan.  22,  1875, 
For.  Rel.  1875,  I.  i'A'X 

In  1880-81  a  discussion  took  place  between  the  United  States  and 
Spain  in  relation  to  the  visitation  and  firing  ujjon  of  the  American 
vessels  Ethel  A . Merritt, Eunice  P.  Xeweom b,  Creotr/e  Washington.,  and 
Hattie  Hasl-ell  by  "Spanish  gunboats  near  the  island  of  Cuba,  in  May, 
June,  and  July,  1880.  There  was  a  wide  variance  between  the  state- 
ments of  the  officers  of  the  vessels  and  statements  of  the  officers  of 


714  NATIONAL   JURISDICTION:    TERRITORIAL   LIMITS.  [§147. 

the  gunboats  as  to  the  distance  from  shore  at  which  the  acts  in  ques- 
tion took  i)hice.  But,  although  the  facts  were  thus  in  dispute,  the 
United  States  said :  "  This  (lovernnient  must  adhere  to  the  three-mile 
rule  as  the  jurisdictional  limit. 

Mr.  Evarts.  Seo.  of  State,  to  Mr.  Faircliild.  niiii.  to  Spain,  No.  Ill,  March 
:{.  1881.  For.  Kel.  1881.  1051. 

The  acts  of  Congress  authorizing  the  Secretary  of  War  to  remove 
sunken  vessels  which  obstruct  the  navigable  rivers  of  the  United  States 
do  not  apply  to  the  coastal  waters  of  Cuba,  since  such  waters  did  not 
become  waters  of  the  United  States  by  reason  of  the  temporary  juris- 
diction of  the  latter  over  the  island. 

Griggs.  At.-Gen..  Marcli  20.  1000,  2.3  Op.  7(J. 

(4)    BRITISH   ACT.    1878. 

S  117. 

The  Court  of  Queen's  Bench  having  held,  in  the  case  of  Queen  v. 
Keyn,  L.  K.  2  Excheq.  Div.  63  (Nov.  11  and  13,  1876),  commonly 
called  the  case  of  the  Franeonia,  that  the  central  criminal  court,  as 
the  possessor  of  the  jurisdiction  formerly  exercised  by  the  admiral 
over  criminal  offences,  had  no  jurisdiction  over  an  offence  committed 
by  a  foreigner  on  a  foreign  ship  within  three  miles  of  the  British 
coast,  since  the  admiral  had,  as  was  contended,  no  jurisdiction  of 
offences  by  foreigners  on  foreign  ships  either  within  or  without  that 
limit.  Parliament  passed,  August  16,  1878,  the  territorial  waters  juri- 
diction  act,  1878,  declaring: 

''  Whereas  the  rightful  jurisdiction  of  Her  Majesty,  her  heirs  and 
successors,  extends  and  has  always  extended  over  the  open  seas  adja- 
cent to  the  coasts  of  the  United  Kingdom  and  of  all  other  parts  of 
Her  Majesty's  domini(ms  to  such  a  distance  as  is  necessary  for  the 
defence  and  security  of  such  dominions; 

"And  whereas  it  is  expedient  that  all  offences  committed  on  the  open 
sea  within  a  certain  distance  of  the  coasts  of  the  United  Kingdom  and 
all  other  parts  of  Her  Majesty's  dominions,  by  whomsoever  com- 
mitted, should  be  dealt  with  according  to  law: 

'"'Be  it  therefore  endcted,  <.{•<■.:  .  .  . 

"  2.  An  offence  committed  l)v  a  person,  whether  he  is  or  is  not  a 
subject  of  Her  Majesty,  on  the  open  sea  within  the  territorial  waters 
of  Her  Majesty's  dominions,  is  an  offence  within  the  jurisdiction  of 
the  admiral,  although  it  may  have  been  connnitted  on  board  or  by 
means  of  a  foreign  ship,  and  the  person  who  committed  such  offence 
may  be  arrested,  tried,  and  punished  accordingly." 

V>y  section  3  it  is  provided  that  the  offender,  if  he  is  not  a  subject 
of  Her  Majesty,  shall  not  be  prosecuted  unless  one  of  the  principal 


§  148.]  THE    MARGINAL   SEA.  7l5 

secretaries  of  state,  or,  in  the  case  of  a  colony,  the  governor,  shall 
certify  that  the  institution  of  proceedings  is  in  his  opinion  expedient. 

"  5.  Nothing  in  this  act  contained  shall  be  construed  to  be  in  dero- 
gation of  any  rightful  jurisdiction  of  Her  Majesty,  her  heirs  or  suc- 
cessors, under  the  law  of  nations,  or  to  affect  or  prejudice  any 
jurisdiction  conferred  by  act  of  Parliament  or  now  by  law  existing 
in  relation  to  foreign  ships  or  in  relation  to  persons  on  board  such 
ships. 

^  0.  This  act  shall  not  prejudice  or  affect  the  trial  in  manner  here- 
tofore in  use  of  any  act  of  piracy  as  defined  by  the  law  of  nations,  or 
affect  or  prejudice  any  law  relating  thereto;  and  where  any  act  of 
piracy  as  defined  by  the  law  of  nations  is  also  any  such  offence  as  is 
declared  by  this  act  to  be  within  the  jurisdiction  of  the  admiral,  such 
offence  may  be  tried  in  pursuance  of  this  act,  or  in  pursuance  of  any 
other  act  of  Parliament,  law,  or  custom  relating  thereto. 

'•  7.  .  .  .  •  I  he  territorial  waters  of  Her  Majesty's  dominions,'  in 
reference  to  the  sea,  means  such  part  of  the  sea  adjacent  to  the  coast 
of  the  United  Kingdom,  or  the  coast  of  some  other  part  of  Her 
Majest^^'s  dominions,  as  is  deemed  by  international  law  to  be  within 
the  territorial  sovereignty  of  Her  Majesty;  and  for  the  purpose  of 
any  offence  declared  by  this  act  to  be  within  the  jurisdiction  of  the 
admiral,  any  part  of  the  open  sea  within  one  marine  league  of  the 
coast  measured  from  low-water  mark  shall  be  deemed  to  be  open  sea 
within  the  territorial  waters  of  Her  Majesty's  dominions." 

The  case  of  Queen  r.  Keyn  is  criticisetl  in  Maine,  Int.  Law,  38 ;  Walker, 
Science  of  Int.  Law,  173;  Stephen's  Hist,  of  the  Criminal  Law,  II. 
29-42 :  the  Case  of  the  "  Franconia."  by  Dwight  Foster,  Am.  Law 
Rev.  XI.  ti2."j  (.luly.  1877)  ;  Twiss,  Case  of  the  Franconia,  Law 
Mag.  &  Rev.  II.  14.5  (Feb..  1877);  Com.  r.  Macloon.  101  Mass.  1; 
Hall.  Int.  Law  (4th  etl.),  213,  note. 

(5)     CASE    OF    THE    COSTA    RICA    PACKET. 

§  148. 

January  "24.  1888,  an  Australian  whaling  ship,  the  Costa  Riea 
Pdcket,  sigiited  at  sea  a  water-logged  derelict  prauw  (native  Malayan 
boat)  of  about  a  ton  burden.  Two  boats  were  put  off,  which,  finding 
goods  on  board  the  prauw.  towed  it  alongside  the  ship,  where  there 
were  transferred  to  her  deck  from  the  prauw  ten  cases  of  gin,  three 
cases  of  brandy,  and  a  can  of  kerosene,  the  brandy  and  gin  being  more 
or  less  damaged  by  sea  water.  The  prauw  and  its  contents  belonged 
to  some  natives  of  the  Dutch  East  Indies;  and  three  years  afterwards, 
the  Costa  Rica  Packet  being  then  in  the  port  of  Ternate,  Dutch  East 
Indies,  the  master  was  arrestt^l  on  a  charge  of  theft,  in  having  seized 
the  prauw  and  maliciously  iij^projji'iated  the  goods  on  it.     A  claim 


716  NATIONAL   JURISDICTION:    TERRITORIAL   LIMITS.     '     [§149. 

was  made  against  the  Dutch  (Tovernment  for  his  arrest  and  imprison- 
ment, on  the  ground  that  the  act  complained  of  took  place  on  the  high 
seas  outside  Dutch  jurisdiction.  The  warrant  of  arrest  alleged  that 
it  took  place  not  more  than  three  miles  from  land,  but  the  evidence 
showed  that  it  was  at  least  fifteen  or  twenty.  The  case  was  referred 
to  Dr.  von  Martens,  of  St.  Petersburg,  as  arbitrator,  who  awarded 
damages  to  tlie  British  (xovernment,  holding  that  "  the  prauw,  float- 
ing derelict  at  sea,  .  .  .  was  seized  incontrovertibly  outside  the 
territorial  waters  of  the  Dutch  Indies."  In  the  course  of  his  award 
he  observed  that  "  the  right  of  sovereignty  of  the  state  over  territo- 
rial waters  is  determined  by  the  range  of  cannon  measured  from  the 
low- water  mark."  On  the  facts  proved,  however,  the  question  of  the 
three-mile  limit  was  not  involved  in  the  decision,  the  distance  of  the 
prauw  from  the  shore  having  far  exceeded  the  range  of  caimon  shot. 
Moore,  Int.  Arbitrations,  V.  4948.  4952,  49.">3. 

(6)     KlI.E    AS    TO    FISHERIES. 

§  110. 

No  general  disposition  has  been  manifested  in  recent  years  to 
restrict  the  right  of  all  nations  to  take  fish  in  the  open  sea.  The 
three-mile  rule,  which  defines  the  exclusive  right  of  fishery  on  the 
Canadian  coasts  under  the  convention  between  the  United  States 
and  Cireat  Britain  of  1818,  may  also  be  found  in  the  convention  of 
1882  between  Belgium.  Denmark,  France,  Germany,  and  Great  Brit- 
ain for  the  regulation  of  the  fisheries  in  the  North  Sea.  The  same 
rule  is  embodied  in  conventions  between  P" ranee  and  Great  Britain 
of  1889  and  1818  for  the  regulation  of  the  fisheries  in  the  channel. 
It  is  also  found  in  a  law  passed  by  the  French  legislature  in  188a 
for  the  exclusion  of  foreigners  from  fishing  in  the  territorial  waters 
of  P>ance  and  Algiers.  In  the  British-French  conventions  of  1889 
and  1818.  and  the  North  Sea  convention  of  1882,"  the  Avidth  of  ten 
miles  at  the  mouth  is.  with  certain  exceptions,  adopted  as  the  defini- 
tion of  bays,  which  are.  for  the  ])urposes  of  the  conventions,  to  be 
treated  as  territorial  waters.  This  rule  was  also  adopted,  with  cer- 
tain specified  exceptions,  in  the  unratified  treaty  between  the  United 
States  and  (ireat  Britain,  concluded  at  Washington  February  15, 
1888,  in  relation  to  the  fisheries  adjacent  to  the  eastern  coasts  of 
British  North  America.  The  reason  of  this  definition  in  fisheries 
conventions  is  a  practical  one.     The  waters  on  either  side  of  the  bay 

o  For  reports  of  the  British  delegates  attending  the  international  conferences 
at  Stockholm.  Christiania.  and  Coi)enhagen  with  respect  to  the  fishery  and 
hydrographical  investigations  in  the  North  Sea,  see  Blue  Book,  North  Sea 
Fishery  Investigations,  1903. 


§  149.]  THE    MARGINAL    SEA.  71 7 

within  three  marine  miles  of  the  shore  being  admittedly  territorial, 
it  is  assumed  that  fishing  in  the  intervening  waters  in  bays  less  than 
ten  miles  wide  at  the  mouth,  if  it  were  not  actually  unprofitable, 
would,  by  reason  of  the  narrowness  of  the  open  space,  be  attended 
with  constant  risk  of  violating  the  law  and  with  constant  temptation 
to  violate  it. 

"  The  Department  has  recently  received  a  despatch  from  Mr.  Peirce, 
the  minister  of  the  United  States  at  Honolulu,  containing  informa- 
tion upon  the  subject  of  the  whaling  interest  in  the  Pacific.  The 
despatch  is  accompanied  by  an  extract  from  the  Hairaiian  Gazette^ 
a  copy  of  which  is  hereunto  annexed.  P^rom  this  it  appears  that  the 
British  whaling  barque  Faraway  has  been  warned  not  to  engage  in 
that  pursuit  in  the  Ochotsk  Sea,  and  her  master  was  served  by  a 
Russian  war  steamer  Avith  the  notice  which  is  at  the  foot  of  the  news- 
paper extract.  Although  we  are  not  aware  that  the  notice  has  been 
served  on  any  American  whaling  vessel,  the  generality  of  its  terms 
makes  such  vessels  under  our  flag  liable  to  receive  it,  and  as  the 
interest  of  the  United  States  in  the  business  far  exceeds  that  of  any 
other  country,  it  is  important  that  we  should  be  informed  if  the  notice 
was  issued  by  authority  of  the  Russian  (jovernment.  You  will 
accordingly  make  the  necessary  inquiries  upon  this  subject  and  will 
rejjort  the  result. 

'•  There  was  reason  to  hope  that  the  practice  which  formerly  pre- 
vailed with  powerful  nations  of  regarding  seas  and  bays  usually  of 
large  extent  near  their  coasts  as  closed  to  any  foreign  commerce  or 
fishery  not  specially  licensed  by  them  was  without  exception  a  jjre- 
tension  of  the  past,  and  that  no  nation  would  claim  exemption  from 
the  general  rule  of  i)ublic  law,  which  limits  its  maritime  jurisdiction 
to  a  marine  league  from  its  coasts.  We  should  particularly  regret  if 
Russia  should  insist  on  any  such  i)retension. 

''■  In  1824  a  convention  Avas  concluded  between  the  United  States 
and  that  i)()\ver  on  the  subject  of  fishing  in  the  Pacific  Ocean,  by  the 
first  article  of  which  it  is  stipulated  that  the  citizens  and  subjects  of 
(he  i>arties  shall  neither  be  distui'bed  nor  restrained  in  following  that 
pursuit.  It  is  true  that  the  IVth  Article  limits  to  ten  years  from  the 
date  of  the  instrument,  the  right  to  fish  in  interior  seas,  gulfs,  harbors 
and  creeks.  It  may  be  contended  that  by  agreeing  to  this  article  we 
impliedly  at  least  recognized  the  right  of  Russia  to  exclude  our  whale- 
men from  those  interior  seas  and  gulfs  at  the  expiration  of  the  ten 
years.  This,  however,  cannot  be  acknowledged  if  such  exclusion 
should  opei'ate  in  any  interior  seas  of  surface  large  enough  to  make 
much  of  that  surface  notoriously  beyond  the  limit  of  maritime  juris- 
diction from  the  shores.  The  Ochotsk  Sea  at  least  is  obviously  of 
this  character." 


718  NATIONAL    jurisdiction:    TERRITORIAL    LIMITS.  [§^49 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Hoker,  niin.  to  Russia,  Dec.  1,  1875,  MS 
Inst.  Russia,  XV.  536. 

In  rei)ly  to  an  iiuiiiiry  wlietlier  American  citizens  were  permitted  by 
treaty  stipulations  to  fish  in  the  Sea  of  Okhotsk,  and  to  go  ashore  to 
obtain  bait  and  water,  the  L)ei>artment  of  State  replied  that  the 
conventional  stipulations  on  the  subject  were  contained  in  the  treaty 
with  Russia  of  1S24,  and  called  attention  to  the  correspondence  with 
Russia  published  in  For.  Rel.  1882,  447-154.  (Mr.  Day.  Assist. 
Sec.  of  State,  to  Mr.  Loud,  Oct.  12,  1897,  221  MS.  Dom.  Let.  443.) 

For  Mr.  Cutts's  report  on  the  fisheries  of  the  North  Pacific,  see  S.  Ex.  Doc. 
34,  42  Cong.  2  sess. 

'"  Referring  to  previous  corre-spondence  between  the  Department 
and  yourself  on  the  subject  of  whale  fishing  off  Bahia  Bay,  on  the 
Brazilian  coast,  I  have  to  acknowledge  the  receipt  of  your  letter  of 
the  8th  instant  on  the  same  subject  in  which  you  express  a  desire  to 
be  informed  whether  such  fishing  on  your  part  will  contravene  any 
existing  treaty  stipulations  between  the  United  States  and  Brazil. 

"  In  reph',  I  have  only  to  say  that  we  have  no  existing  treaty  with 
Brazil,  that  of  1828  having  expired  in  all  its  parts  relating  to  navi- 
gation and  commerce  in  1841.  The  general  law  and  rule  is  understood 
by  this  (irovernment  to  be  that  beyond  the  marine  league  or  three-mile 
limit,  all  persons  may  freeW  catch  w^hale  or  fish.  In  computing  this 
limit,  however,  'bays'  are  not  taken  as  a  part  of  the  high  seas;  the 
three  miles  must  be  outside  of  a  line  drawn  from  headland  to  head- 
land.'' 

Mr.  .Jo!in  Davis.  Assist.  Sec.  of  State,  to  Mr.  Osborn,  Feb.  14,  1884,  150  MS. 

Doni.  Let.  6. 
In  the   MS.   record-book  the  last  words  of  the   foregoing  passage  read, 

"  from  the  headland  to  headline,"  but  this  appears  to  be  a  copyist's 

error. 

"'  It  being  desirable  that  there  should  be  an  agreement  between  the 
several  Departments  of  our  (irovernment  as  to  the  limits  of  territorial 
waters  on  our  northeastern  and  northwestern  coasts,  I  have  the  honor 
to  sul)mit  to  you  the  following  statement  of  the  law  on  this  important 
question  as  held  in  the  Department  of  State.  What  I  have  here  to 
communicate  bears,  so  far  as  concerns  the  Dei)artment  over  which 
you  preside,  on  our  own  claim  to  a  jurisdiction  over  territorial  waters 
on  the  northwest  coast  beyond  the  three-mile  zone.  We  resist  this 
claim  when  advanced  against  us  on  the  northeastern  coast.  What  is 
now  submitted  to  you  is  the  question  whether  the  principle  thus 
asserted  by  us  does  not  preclude  us  from  setting  up  an  extension, 
beyond  this  limit  of  our  marine  jurisdiction  in  the  northwest. 

"  In  a  letter  by  Mr.  Jefferson,  when  Secretary  of  State  on  Novem- 
ber 8.  1793.  to  the  minister  of  Great  Britain,  and  in  a  circular  of 
November  10,  1793,  to  the  United  States  district  attorneys,  the  limit 
of  one  sea-league  from  shore  was  provisionally  adopted  by  him  as 


§  149.]  THE    MARGINAL    SEA.  719 

that  of  the  territorial  seas  of  the  United  States.  The  same  position 
was  taken  by  Mr.  Pickering,  Secretary  of  State,  on  September  2, 
1796 ;  by  Mr.  Madison,  Secretary  of  State,  Feby.  3, 1807 ;  By  Mr.  Web- 
ster, Secretary  of  State,  August  1,  1842;  by  Mr.  Seward,  Secretary  of 
State,  December  16,  1862,  August  10,  1863,' Sept.  16,  1864;  and  by  Mr. 
Fish,  Secretary  of  State,  December  1,  1875. 

"  In  a  note  from  Mr.  Fish  to  Sir  Edward  Thornton,  dated  Jan. 
22,  1875,  it  is  expressly  stated  in  reply  to  inquiries  from  the  British 
foreign  office  '  that  this  Government  has  uniformly,  under  every 
administration,  objected  to  the  pretension  of  Spain  '  to  a  six-mile 
limit.  Mr.  Fish  proceeds  to  show  that  the  United  States  statute, 
giving  the  right  to  board  vessels  within  four  leagues  of  the  coast,  is 
applied  only  to  vessels  coming  to  United  States  ports,  and  that  the 
extension  of  the  boundary  line,  between  the  United  States  and 
Mexico,  to  three  leagues  from  land,  by  the  treaty  of  Guadalupe 
Hidalgo,  applies  only  to  Mexico  and  the  United  States. 

"  Mr.  Evarts,  writing  to  Mr.  P^urchild,  then  our  representative  in 
Spain  on  March  3,  1881  (Foreign  Relations,  1881)  said:  'This  Gov- 
ernment must  adhere  to  the  three-mile  rule  as  the  jurisdictional  limit, 
and  the  cases  of  visitation  vithout  that  line  seem  not  to  be  excused 
or  excusable  under  that  rule.' 

"  Whether  the  line  which  bounds  seaward  the  three-mile  zone  fol- 
lows the  indentations  of  the  coast  or  extends  from  headland  to  head- 
land is  the  question  next  to  be  discussed. 

'•  The  headland  theory,  as  it  is  called,  has  been  uniformly  rejected 
by  our  (lovermnent,  as  will  be  seen  from  the  opinions  of  the  Secre- 
taries above  referred  to.  The  following  additional  authorities  may 
be  cited  on  this  point: 

'•  President  Woolsey  makes  the  following  comment  on  the  '  head- 
land '  claim:  *  But  such  broad  claims  have  not,  it  is  believed,  been 
much  urged,  and  they  are  out  of  character  for  a  nation  that  has 
ever  asserted  the  freedom  of  doubtful  waters  as  Avell  as  contrary 
to  tlie  spirit  of  more  recent  times.' 

'•  In  an  opinion  of  the  umpire  of  the  London  commission  of  1853, 
it  was  held  that :  '  It  can  not  be  asserted  as  a  general  rule,  that  na- 
tions have  an  exclusive  right  of  fishery  over  all  adjacent  waters  to 
a  distance  of  three  marine  miles  beyond  an  imaginary  line  drawn 
from  headhnid  to  headland.' 

"  This  doctrine  is  new  and  has  received  a  proper  limit  in  the  con- 
ventioii  between  France  and  Great  Britain  of  the  2d  of  August, 
1839.  in  wliich  it  is  equally  agreed  that  the  distance  of  three  miles 
fixed  as  the  general  limit  for  the  exclusive  right  of  fishery  upon 
the  coasts  of  the  two  countries  shall,  with  respect  to  bays  the  mouths 
of  which  do  not  exceed  ten  miles  in  width,  be  measured  from  a 
straight  line   drawn   from   headland   to   headland.     Cited   Halifax 


720  NATIONAL  jurisdiction:   territorial  limits.       [§149. 

Commission,  page  152.  In  the  same  volume,  page  155,  it  is  stated 
that  on  Ma}'  14,  1870,  the  ten-mile-heacUand  doctrine  having  been 
reasserted  by  Mr.  Peter  Mitchell,  provincial  minister  of  marine  and 
fisheries.  Lord  Granville,  British  foreign  secretary,  on  June  6,  1870, 
telegraphed  to  the  governor-general  as  follows:  '  Her  Majesty's  Gov- 
ernment hopes  that  the  United  States  fishermen  will  not  be,  for  the 
present,  prevented  from  fishing,  except  Avithin  three  miles  from 
land  or  in  bays  which  are  less  than  six  miles  broad  at  the  mouth.' 

''  We  may  therefore  regard  it  as  settled  that,  so  far  as  concerns 
the  eastern  coast  of  North  America,  the  position  of  this  Department 
has  uniformly  been  that  the  sovereignty  of  the  shore  does  not,  so 
far  as  territorial  authority  is  concerned,  extend  beyond  three  miles 
from  low-water  mark,  and  that  the. seaward  boundary  of  this  zone 
of  territorial  waters  follows  the  coast  of  the  mainland,  extending 
where  there  are  islands  so  as  to  place  round  such  islands  the  same 
belt.  This  necessarily  excludes  the  position  that  the  seaward  bound- 
ary is  to  be  drawn  from  headland  to  headland,  and  makes  it  follow 
closely,  at  a  distance  of  three  miles,  the  boundary  of  the  shore  of  the 
continent  or  of  adjacent  islands  belonging  to  the  continental  sov- 
ereign. 

"  The  position  I  here  state,  you  must  remember,  was  not  taken  by 
this  Department  speculatively.  It  was  advanced  in  periods  when  the 
question  of  peace  or  war  liung  on  the  decision.  When,  during  the 
three  earlier  administrations,  Ave  Avere  threatened  on  our  coast  by 
Cireat  Britain  and  France,  Avar  l)eing  inuuinent  Avith  Great  Britain, 
and  for  a  time  actually  though  not  formally  engaged  in  AA'ith  France, 
Ave  asserted  this  line  as  determining  the  extent  of  our  territorial 
Avaters.  AVhen  Ave  Avere  involved,  in  the  earlier  part  of  Mr.  Jefferson's 
Administration,  in  difliculties  Avith  Spain,  avo  then  told  Spain  that  aa'c 
conceded  to  her.  so  far  as  concerned  Cuba,  the  same  limit  of  territorial 
Avaters  as  Ave  claimed  for  ourselves,  granting  nothing  more;  and  this 
limit  Avas  afterAvards  reasserted  by  Mr.  Seward  during  the  late  civil 
Avar,  when  there  Avas  every  inducement  on  our  i)art  not  only  to  oblige 
Spain,  but  to  extend,  for  our  oavu  use  as  a  belligerent,  territorial 
l)rivilege.  When,  in  1(S07,  after  the  outrage  on  the  Chempedhe  by 
the  Lcojxu'd,  Mr.  Jetl'erson  issued  a  proclamation  excluding  British 
men-of-Avar  from  our  territorial  waters,  there  Avas  the  same  rigor  in 
limiting  these  Avaters  to  three  miles  from  shore.  And  during  our 
various  fishery  negotiations  Avith  (ireat  Britain  Ave  haA'e  insisted  that 
beyond  the  three-mile  line  British  territorial  Avaters  on  the  north- 
eastern coast  do  not  extend.  Such  Avas  our  position  in  1783.  in  1794, 
in  1815.  in  1818.  Such  is  our  position  noAv  in  our  pending  contro- 
versy Avith  Great  Britain  on  this  important  issue.  It  is  triu'  that  there 
are  qualifications  to  this  rule,  iiut  these  qualifications  do  not  affect  its 
application  to  the  fisheries.     We  do  not,  in  asserting  this  claim,  deny 


§  1-19-]  THE    MARGINAL    SEA.  721 

the  free  right  of  vessels  of  other  nations  to  pass,  on  peaceful  errands, 
through  this  zone,  provided  tiiev  do  not  by  loitering  produce  uneasi- 
ness on  the  shore  or  raise  a  suspicion  of  smuggling.  Xor  do  we 
hereby  waive  the  right  of  the  sovereign  of  the  shore  to  require  that 
armed  vessels,  whose  projectiles,  if  used  for  practice  oi'  warfare, 
might  strike  the  shore,  should  move  beyond  cannon  range  of  the  shore 
when  engaged  in  artillery  practice  or  in  battle,  as  was  insisted  on  by 
the  French  Government  at  the  time  of  the  fight  between  the  Kear- 
savge  and  the  Alahcnna^  in  18()4,  off  the  harbor  of  Cherbourg.  We 
claim  also  that  the  sovereign  of  the  shore  has  the  right,  on  the  princi- 
ple of  self  defence,  to  pursue  and  punish  marauders  on  the  sea  to  the 
very  extent  to  which  their  guns  would  carry  their  shot,  and  that  such 
sovereign  has  jurisdiction  over  crimes  committed  by  them  through 
such  shot,  although  at  the  time  of  the  shooting  they  ^yere  beyond  three 
miles  from  shore.  But  these  qualifications  do  not  in  any  way  affect 
the  principle  I  now  assert,  and  which  I  am  asserting  and  pressing  in 
our  present  contention  with  Great  Britain  as  to  the  northeastern 
fisheries.  From  the  time  Avhen  European  fishermen  first  visited  the 
great  fisheries  of  the  northeastern  Atlantic,  these  fisheries,  subject  to 
the  territorial  jurisdiction  above  stated,  have  been  held  open  to  all 
nations;  and  even  over  the  marine  belt  of  three  miles  the  jurisdiction 
of  the  sovereign  of  the  shore  is  qualified  by  those  modifications  which 
the  law  of  necessity  has  wrought  into  international  law.  Fishing 
boats  or  other  vessels,  traversing  those  rough  waters,  have  the  right, 
not  merely  of  free  transit  of  which  I  have  spoken,  but  of  relief,  when 
suffering  from  want  of  necessaries,  from  the  shore.  There  they  may 
go  by  the  law  of  nations,  irrespective  of  treaty,  when  suffering  from 
want  of  water,  or  of  food  or  even  of  bait,  when  essential  to  the  pursuit 
of  a  trade  which  is  as  precarious  and  as  beset  with  disasters  as  it  is 
beneficent  to  the  i)opulation  to  whom  it  supplies  a  cheap  and  nutri- 
tious food.  These  rights  we  insist  on  being  conceded  to  our  fisher- 
men in  the  northeast,  where  the  mainland  is  under  the  British  sceptre. 
We  can  not  refuse  them  to  others  on  our  northwest  coast,  where  the 
sceptre  is  held  by  the  United  States.  We  asserted  them,  as  is  seen  by 
Mr.  Fish's  instruction,  above  quoted  of  December  1,  1875,  against 
Russia,  thus  denying  to  her  jurisdiction  beyond  three  miles  on  her 
own  marginal  seas.  We  can  not  claim  greater  jurisdiction  against 
other  uations,  of  seas  washing  territories  which  we  derived  from 
Russia  under  the  Alaska  purchase." 

Mr.   Hayard.   Sec.  of  State,  to  Mr.  Manning,   Sec.  of  Ti-easury,  May  28, 

ISSO,  IW  -MS.  1)1. ni.  T^t  :J4S. 
As  to  hot  pursuit,  see  supra,  §  144. 
In  May,  18!»1,  the  Chilean  insurgent  steamer  Itatii.  while  in  custody  at 

San  Diego.  California,  on  a  charge  of  violating  the  neutrality  laws 

H.  Doc.  551 46 


722  NATIONAL  jurisdiction:   territorial  limits.       [§150. 

of  tlie  United  States,  put  to  sea,  takiug  with  her  a  deputy  United 
States  marshal  who  was  on  board.  Orders  were  given  to  United 
States  men-of-war  to  search  for  her  and  seize  lier,  if  on  tlie  high 
sea.  (^Ir.  Tracy,  Sec.  of  Navy,  to  Cai)t.  Remey  U.  S.  S.  Charleston, 
tel.  May  8.  1801,  H.  Ex.  Doc.  91,  52  Cong.  1  sess.  250.) 
The  Itata  succeeded  in  reaching  Iquque,  where  she  was  voluntarily 
delivered  over  to  the  United  States  by  the  Congressionalists  without 
demand.  (See  testimony  ol  Admiral  Brown,  in  South  Am.  S.  S.  Co. 
V.  United  States.  No.  18.  United  States  and  Chilean  Claims  Commis- 
sion (1901),  218  et  se<i.) 

In  reply  to  an  inquiry  touching  the  halibut  fisheries  on  the  west 
coast  of  (ireenland,  the  Danish  minister  at  Washington  comnuini 
cated  to  the  Department  of  State  copies  of  a  royal  order  of  March 
18,  1776,  and  of  a  decree  of  May  8,  1884,  in  relation  to  the  Greenland 
trade  and  fisheries.  By  these  papers,  as  well  as  by  the  minister's 
statement,  it  appeared  that  foreigners  were  at  liberty  to  fish  in  the 
waters  in  question  at  a  distance  of  a  Danish  mile  from  the  coast. 

Mr.  Bayard,  Sec.  of  State,  to  Count  de  SiK)nneck,  Danisli  min.,  Dec.  3, 

1888,  acknowledging  receipt  of  a  note  of  Dec.  12;    Mr.  Bayard,  Sec. 

of  State,  to  Messrs.  Babson,  June  15,  1888,  KkS  MS.  Dom.  Let.  612. 
That  Norway  claims,  in  respect  of  the  fisheries,  perhaps  on  grounds  of 

prescription  or  long  acquiescence,  a  jurisdiction  of  four  marine  miles, 

see  Moore.  Int.  Arbitrations,  I.  920,  note. 

By  the  act  of  April  30,  1900.  to  provide  a  government  for  the 
Territory  of  Hawaii,  all  laws  of  the  Republic  of  Hawaii  v.hich  con- 
ferred exclusive  fishing  rights  on  any  person  were  repealed,  and  all 
sea  fisheries  of  the  Territory  not  included  in  any  fish  pond  or  arti- 
ficial enclosure  were  declared  to  be  free  to  all  citizens  of  the  United 
States,  subject,  however,  to  such  vested  rights  as  might  be  established 
in  the  manner  prescribed  in  the  act. 

(7)     QUESTION    OF    DEFENSIVE    POWER. 

v$  150. 

"  In  defining  the  distance  i)rotected  against  belligerent  proceedings 
it  would  not,  perhaps,  be  unrea.sonable,  considering  the  extent  of  the 
United  States,  the  shoaluess  of  their  coast,  and  the  natural  indication 
furnished  by  the  well-defined  path  of  the  (Julf  Stream,  to  expect  an 
immunity  for  the  space  between  that  limit  and  the  American  shore. 
But  at  least  it  may  be  insisted  that  the  extent  of  the  neutral  immunity 
should  correspond  with  the  claims  maintained  by  Great  Britain 
around  her  own  territory.  Without  any  particular  inquiry  into  the 
extent  of  these,  it  may  be  observed,  1st.  that  the  British  act  of  Par- 
liament in  the  year  173(),  9  G.  II.  c.  35.  supposed  to  be  that  called  the 
'  hovering  act,'  assumes,  for  certain  purposes  of  trade,  the  distance 


§  150.]  THE    MARGINAL    SEA.  723 

of  four  leagues  from  the  shores;  2d,  that  it  appears  that,  both  in  the 
reign  of  James  I.  and  of  Charles  II.  (see  L.  Jenkins,  vols.  1  and  2) 
the  security  of  the  commerce  with  British  ports  was  provided  for  by 
express  prohibitions,  against  the  roving  or  hovering  of  belligerent 
ships  so  near  the  neutral  harbors  and  coasts  of  (rreat  Britain  as  to 
disturb  or  threaten  vessels  homeward  or  outward  bound,  as  well 
as  against  belligerent  proceedings  generally,  within  an  inconvenient 
approach  towards  British  territory." 

Mr.  Madison.  Sec.  of  State,  to  Messrs.  Monroe  and  Pinkney,  plenipos.  in 
Loudon,  May  17,  1800.  Am.  State  Papers.  For.  Rel.  III.  119,  121. 

Messrs.  Monroe  and  Pinkney  were  instructed  to  proi)ose  an  article  pro- 
liibitiug  seizures,  seardies,  and  otlier  interruptions  by  belligerent 
cruisers  witbin  barbors  and  cbanibers  formed  by  beadlands.  or  any- 
wbere  at  sea,  witbin  4  leagues  of  shore ;  but  it  was  stated  that,  if 
that  distance  could  not  be  obtained," "  any  distance  not  less  than  one 
sea  league  may  be  substituted  in  the  article." 

The  leading  illustration  of  the  distinction  that  has  sometimes  been 
Case  of  the  "Ala-  drawn  between  the  exercise  by  a  nation  of  its  pro- 
bama"  and  tective  power  and  the  claim  of  exclusive  possession 
"Kearsarge."  ^^d  jurisdiction,  is  found  in  the  position  taken  by 
the  French  Government  in  the  case  of  the  Alahama  and  the  Kear- 
sarge in  18(34.  When  the  Kearsarge  appeared  off  Cherbourg,  Francs, 
in  pursuit  of  the  Alabama^  which  was  then  lying  in  that  harbor, 
M.  Drouyn  de  I'Huys.  the  French  minister  of  foreign  affairs,  who 
had  been  advised  that  the  Alabama  intended  to  meet  the  Kear- 
sarge, and  that  the  ships  probably  would  attack  each  other  as  soon 
as  they  were  threeiiiiiles  off  the  coast,  made  to  Mr.  Dayton,  minister 
of  the  United  States,  in  an  interview,  the  following  statement: 
"  That  a  sea  fight  would  thus  be  got  up  in  the  face  of  France,  and  at 
a  distance  from  their  coast  Avithin  reach  of  the  guns  used  on  sliip- 
board  in  these  days.  That  the  distance  to  which  the  neutral  right 
of  an  adjoining  government  extended  itself  from  the  coast  Avas  unset- 
tled, and  that  the  reason  of  the  old  rules,  which  assumed  that  three 
miles  was  the  outermost  reach  of  a  cannon  shot,  no  longer  existed, 
and  that,  in  a  word,  a  fight  on  or  about  such  a  distance  from  their 
coast  iroald  be  offens'ire  to  the  dignitij  of  France  and  they  would  not 
peiinit  ity  Mr.  Dayton  replied  that  "no  other  rule  than  the  three- 
mile  rule  was  known  or  recognized  as  a  principle  of  international 
law,"  but  that,  "  if  a  fight  Avere  to  take  place,  and  we  would  lose 
nothing  and  risk  nothing  by  its  being  further  off,  I  had,  of  course, 
no  objection."'"  Mr.  Dayton  immediately  advised  Captain  WinsloAv, 
of  the  Kearsarge,  by  letter,  of  the  representations  of  M.  Drouyn  de 


«  Mr.  Dayton,  niin.  to  France,  to  Mr.   Seward,  Sec.  of  State,  June  17,  1864, 
Dip.  Cor.  1864,  III.  104. 


724  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  150. 

ITIuys,  and  added:  "Under  such  eireiinistances  I  do  not  suppose 
tliat  they  wouhl  liave,  on  princii:)les  of  international  law,  the  least 
ri<rht  to  interfere  with  you  if  three  miles  off  the  coast;  but  if  you 
los(^  nothinfj:  by  fighting  six  or  seven  miles  off  the  coast  instead  of 
three,  you  had  best  do  so.  You  know  better  than  I  .  .  .  whether 
the  pretense  of  the  Alabama  of  a  readiness  to  meet  you  is  more  than 
a  pretense,  and  I  do  not  wish  you  to  sacrifice  any  advantage  if  you 
liave  it.  I  suggest  only  that  you  avoid  all  iinnecesmry  trouble  with 
France;  but  if  the  Alabama  can  be  taken  without  violating  any  rules 
of  international  law,  and  may  be  lost  if  such  a  principle  is  yielded, 
you  know  what  the  (ioveriiment  would  expect  of  you.  You  will,  of 
course,  yield  no  real  advantage  to  which  you  are  entitled,  w^hile  you 
are  careful  to  so  act  as  to  make,  uselessly,  no  unnecessary  complications 
with  the  (Tovernment."  This  letter  was  duly  delivered  to  Captain 
Winslow,  but  the  messenger,  by  whom  it  was  sent,  found,  on  his 
arrival  at  Cherbourg,  that  the  prefect  had  already  made  known  the 
wishes  of  the  French  Government  as  to  the  distance  within  which  a 
fight  should  not  occur.  The  fight  took  place  on  the  morning  of 
June  19,  18()4.  AVhen  the  Alabama  left  the  harbor  she  was  accom- 
panied by  a  French  man-of-war,  apparently  for  the  purpose  of  seeing 
that  the  battle  Avas  not  begun  too  near  the  shore.  It  began  soon  after 
the  man-of-war  left  the  Alabama.  The  Kearsai^ge  was  then  lying 
probably  from  seven  to  nine  miles  off  shore.  The  fight  lasted  an 
hour  and  a  half,  and  the  Alabama ,  w^hen  she  began  to  fill,  made  for 
the  coast,  from  which  she  was  five  miles  distant  when  she  sank.^  In 
acknowledging  the  receipt  of  Mr.  Dayton's  report  of  the  transaction, 
Mr.  Seward  said:  '"  I  approve  of  your  instructioift  to  Captain  Wins- 
low.  It  will  be  proj)er  for  you,  nevertheless,  while  informing  M. 
Drouyn  de  THuys  that  I  do  so  in  a  spirit  of  courtesy  towards  France, 
to  go  further,  and  inform  him  that  the  United  States  do  not  admit  a 
right  of  France  to  interfere  with  their  ships  of  war  at  any  distance 
exceeding  three  miles.  Especially  must  Ave  disallow  a  claim  of 
France  so  to  interfere  in  any  conflict  that  we  may  find  it  necessary  to 
Avage  in  European  Avaters  Avith  piratical  A-essels  like  the  Alabama, 
built,  armed,  manned,  and  equipped,  and  receiA'ed  as  a  belligerent  in 
opposition  to  our  persistent  remonstrances  to  commit  depredations 
on  our  commerce." '' 

a  Mr.  Dayton,  iiiin.  to  France,  to  C'apt.  Winslow,  of  tlie  Kcarmrfic,  undated, 
Dip.  Cor.  18G4,  IIL  104-105. 

hDip.  Cor.  1864,  III.  100-109.  111-112. 

c  Mr.  Seward.  See.  of  State,  to  .Mr.  Dayton,  min.  to  France,  .July  2,  1804.  Dip. 
Cor.  1804,  III.  120-121. 

AVliarton.  in  liis  Int.  Law  Dig.  I.  §  .'52,  p.  114.  referring  to  the  position  of  the 
French  Government,  says : 

"  Nor  does  this  reason  apply  exclusively  to  hostile  operations.     We  can  con- 


§  151.]  THE    MARGINAL   SEA.  725 

(8)     BEVENUE    ACTS. 

§  151. 

"The  British  'hovering  act,'  passed  in  1736  (9  Geo.  IL,  cap.  35), 
assumes,  for  certain  revenue  purposes,  a  jurisdiction  of  four  leagues 
from  the  coasts,  by  prohibiting  foreign  goods  to  be  transshipped 
within  that  distance  Avithout  payment  of  duties.  A  similar  provision 
is  contained  in  the  revenue  laAvs  of  the  United  States,  and  both  these 
provisions  have  been  declared  by  judicial  authority  in  each  countiy  to 
be  consistent  with  the  law  and  usage  of  nations.'' 

Wheaton,  Int.  Law  (Dana's  ed.),  §  179. 

The  provision  in  the  revenue  laws  of  the  United  States,  embodied  in  the 
act  of  March  2,  1797,  §  27.  reads,  as  incorporated  into  the  Revised 
Statutes,  as  follows : 

"  Sec.  27G0.  The  officers  of  the  revenue  cutters  shall  respectively  be 
deemed  officers  of  the  customs,  and  shall  be  subject  to  the  direction 
of  such  collectors  of  the  revenue,  or  other  officers  thereof,  as  from 
time  to  time  shall  be  designated  for  that  purpose.  They  shall  go  on 
board  all  vessels  which  arrive  within  the  United  States  or  within 
four  leagues  of  the  coast  thereof,  if  l)ound  for  the  United  States,  and 
search  and  examine  the  same,   and  every   part  thereof,   and  shall 

ceive,  for  instance,  of  a  case  in  which  armed  vessels  of  nations,  with  whom  we 
are  at  peace,  might  select  a  spot  within  cannon  range  of  our  coast  for  the  prac- 
tice of  their  guns.  A  ca.se  of  this  character  took  place  not  long  since  in  which 
an  object  on  shore  was  selected  as  a  point  at  which  to  aim,  for  the  purpose  of 
practicing,  projectiles  to  be  thrown  from  the  cruiser  of  a  friendly  power.  Sup- 
posing such  a  vessel  to  be  four  miles  from  the  conSt.  could  it  be  reasonably  main- 
tained that  we  have  no  police  jurisdiction  over  such  culpable  negligence?  Or 
could  it  be  reasonably  maintained  that  marauders,  who  at  the  same  time  would 
not  be  technically  pirates,  covild  throw  jirojectiles  upon  our  shores  without  our 
having  jurisdiction  to  bring  them  to  justice?  The  answer  to  such  questions  may 
be  dr:iwn  from  the  reason  that  sustained  u  claim  for  a  three-mile  police  belt  of 
sea  in  old  times.  This  reason  authorizes  the  extension  of  this  belt  for  police 
purposes  to  nine  miles,  if  such  be  the  range  of  cannon  at  the  present  day.  This, 
it  should  be  remembered,  does  not  subjec-t  to  our  domestic  jurisdiction  all  ves- 
sels passing  within  nine  miles  of  (mr  shores,  nor  does  it  by  itself  give  us  an  exclu- 
sive right  to  fisheries  within  such  a  limit,  or  within  such  greater  limit  as 
greater  improvements  in  gimnery  might  suggest ;  nor  would  it  authorize  the 
Executive  to  warn  off.  within  tliese  extended  limits,  foreign  ships  by  a  proclama- 
tion similar  to  that  of  President  .Teflferson.  in  1807.  so  as  to  i)revent  them  from 
communicating  with  the  shore.  For  the  latter  puriM)ses  the  three-mile  limit  is 
the  utmost  that  can  be  claimed." 

So  far  as  these  observations  relate  to  criminal  acts,  it  may  be  remarked  that  it 
is  luiiversally  admitted  that  jurisdiction  of  offences  may  be  derived  from  the 
locality  either  of  the  act  or  of  the  actor.  The  distinction  really  sought  to  be 
made  is  that  between  preventive  police  and  the  claim  of  territorial  jurisdiction, 
and,  in  case  of  an  offence  actually  committed,  between  the  right  to  punish  the 
offender,  if  he  comes  within  the  jurisdiction  or  is  brought  there  by  extradlton, 
and  the  right  to  arrest  him  outside  of  it 


7-2^  NATIONAL  jurisdiction:  territorial  limits.       [§151. 

(leniaiul.  receive,  and  certify  the  manifests  required  to  be  on  board 
certain  vessels,  sliall  affix  and  imt  proper  fastenings  on  the  hatches 
and  other  coninuniications  with  the  liold  of  any  vessel,  and  shall 
remain  on  board  such  vessels  until  they  arrive  at  the  port  or  place  of 
their  destination." 

''The  statement  in  the  text  [of  Wheaton,  above  quoted]  requires 
farther  consideration.  It  has  been  seen  that  the  consent  of  nations 
extends  the  territory  of  a  state  to  a  marine  leao;ue  orcann(m-shot  from 
the  coast.  Acts  done  within  this  distance  are  within  the  sovereign 
territory.  Tlie  war  right  of  visit-  and  search  extends  over  the  whole 
sea,  but  it  will  not  be  found  that  any  consent  of  nations  can  be  shown 
in  favor  of  extending  what  may  be  strictly  called  territoriality,  for 
aiiy  purpose  whatever,  beyond  the  marine  league  or  cannon-shot. 
l)«)ubtless  states  have  made  laws  for  revenue  j)urj)oses  touching  acts 
done  beyond  territorial  waters,  ()ut  it  will  not  be  found  that,  in  later 
times,  the  right  to  make  seizures  beyond  such  waters  has  been  insisted 
upon  against  the  remonstrance  of  foreign  states,  or  that  a  clear  and 
UHe(iuivocal  judicial  precedent  now  stands  sustaining  such  seizures 
when  the  question  of  jurisdiction  has  been  presented.  The  revenue 
laws  of  the  United  States,  for  instance,  provide  that  if  a  vessel  bound 
to  a  port  in  the  United  States,  shall,  except  from  necessity,  unload 
cargo  within  4  leagues  fi-oni  the  coast,  and  before  coming  to  the 
I)roper  j^ort  for  entry  and  unloading,  and  receiving  permission  to  do 
so,  the  cargo  is  forfeit,  and  the  nuister  incurs  a  penalty  (Act  2d 
March,  1797,  >J  '27)  :  but  the  statute  does  not  authorize  a  seizure  of 
a  foreign  vessel  when  beyond  the  territorial  jurisdiction.  The  statute 
may  well  be  consti'ued  to  mean  only  that  a  foreign  vessel,  coming  to 
iin  American  i)ort,  and  there  seized  for  a  violation  of  revenue  regula- 
tions committed  out  of  the  jurisdiction  of  the  Ignited  States,  may  be 
confiscat(Ml :  but  that,  to  c()mj)letethe  forfeitiu'e,  it  is  essential  that  the 
vessel  shall  be  bound  to  and  shall  come  within  the  territory  of  the 
United  States  after  the  i)r()hibited  act.  The  act  done  bi'vond  the 
jurisdiction  is  assumed  to  be  i)art  of  an  attempt  to  violate  the  revenue 
laws  within  the  jurisdiction.  Under  the  previous  sections  of  that  act 
it  is  made  the  duty  of  revenue  officers  to  board  all  vessels  for  the  pur- 
pose of  examining  their  i)apers  within  four  leagues  of  the  coast.  If 
foreign  vessels  have  been  boarded  and  seized  (m  the  high  sea,  and  have 
been  adjudged  guilty,  and  their  Governments  have  not  objected,  it  is 
probably  either  because  they  were  not  ajipealed  to  or  have  acquiesced 
in  the  ]>ai'ticular  instance  from  motives  of  comity. 

••  The  cases  cited  in  the  author's  note  do  not  necessarily  and  strictly 
sustain  the  position  taken  in  the  text.  In  the  Louis  (Dodson,  ii,  245), 
the  arrest  was  held  unjustified,  because  made  in  time  of  peace  for  a 
violation  of  municipal  law  beyond  territorial  waters.    The  words  of 


§  151.]  THE    MARGINAL    SEA.  727 

Sir  William  Scott,  on  pages  245  and  24G,  with  reference  to  the  hover- 
ing acts,  are  only  illustrative  of  the  admitted  rule  that  neighboring 
waters  are  territorial;  and  he  does  not  sa}',  even  as  an  ohiter  dictum, 
that  the  territory  for  revenue  purposes  extends  b^'yond  that  claimed 
for  other  purposes.  On  the  contrary,  he  says  that  an  inquiry  for 
fiscal  or  defensive  purposes,  near  the  coast,  but  beyond  the  marine 
league,  as  under  the  hovering  laws  of  Great  Britain  and  the  United 
States,  '  has  nothing  in  common  with  the  right  of  visitation  and 
search  upon  the  unappropriated  parts  of  the  ocean:'  and  adds,  'a 
recent  Swedish  claim  of  examination  on  the  high  seas,  though  con- 
fined to  foreign  ships  bound  to  Swedish  ports,  and  accompanied,  in  a 
numner  not  very  consistent  or  intelligible,  with  a  disclaimer  of  all 
'ight  of  visitation,  was  resisted  by  the  British  (lovernment,  and  was 
finally  withdrawn.'  " 

Dana,  notp  108.  Wheaton's  Int.  Law.  §  170,  p.  2.^8. 

Two  policies  of  insurance  were  obtained  on  the  cargo  of  the  brig 
Aurora,  from  New  York  to  one  or  two  Portuguese  ports  in  Brazil.  In 
each  policy  there  was  an  exception  of  the  risk  of  seizure  for  illicit 
trade  with  the  Portuguese.  The  vessel  was  cleared  out  for  the  Cape 
of  Good  Hope,  but  proceeded  to  Rio  de  Janeiro,  where  she  disposed  of 
part  of  her  cargo.  Sailing  then  for  Para,  she  fell  in  with  the  Ameri- 
can schooner  Four  Sisters,  bound  for  the  same  port,  and  the  two 
vessels  agreed  to  keep  company.  In  due  time  they  came  to  anchor 
about  four  or  five  leagues  from  land,  off  the  mouth  of  the  river  Para, 
and  certain  members  of  the  crew  of  each  vessel  went  oft"  in  the 
schooner's  long  boat  to  speak  to  a  Portuguese  boat  seen  inshore,  with 
a  view,  as  they  alleged,  to  procure  a  pilot  to  take  the  vessels  up  the 
river,  in  order  that  they  might  obtain  a  supply  of  wood  and  water, 
and.  if  jiermitted,  sell  their  cargo.  After  the  long  boat  had  put  off, 
tlie  master  of  the  brig  went  on  board  the  schooner,  and  the  latter 
proceeded  toward  the  shore,  in  the  hope  of  finding  a  pilot,  and  while 
-o  doing  compelled,  l)v  firing,  a  Portuguese  schooner  to  come  to  a^.d 
her  master  to  come  on  board,  greatly  to  the  alarm  of  the  latter,  who 
supposed  that  the  vessels  were  P'rench  and  enemies.  Meanwhile,  the 
persons  who  had  gone  ashore  in  the  long  boat  were  seized  and 
imprisoned,  and  a  day  or  two  afterwards  both  the  brig  and  the 
schooner  were  taken  possession  of  by  a  body  of  armed  men  in  boats, 
and  carried  into  Para,  where,  with  their  cargoes,  they  were  condemned 
on  the  gi'ound  that  they  were  attempting  to  trade  in  violation  of  the 
laws  of  Portugal. 

An  action  on  the  case  on  the  two  policies  on  the  cargo  of  the  brig 
was  brought  in  the  circuit  court  of  the  United  States  for  the  district 
of  Massachusetts  arid  a  verdict  was  found  for  the  defendant,  Mr. 


728  NATIONAL    JURISDICTION:    TERRITORIAL   LIMITS.  [§  l^l. 

Justice  Cushing,  who  charged  the  jurv.  saying  that,  while  it  was 
contended  that  the  brig  was  not  within  the  Portuguese  dominions 
and  therefore  not  viohiting  any  of  their  laws,  it  appeared  that  she 
"  was  hovering  on  the  coast  of  Para  and  anchored  upon  that  coast, 
and  that  the  plaintiff,  with  others  from  the  vessel,  went  on  shore  in 
the  boat  among  the  inhabitants." 

Before  the  Supreme  Court  it  was  argued  for  the  plaintiff  that  as 
the  vessel  was  *'  seized  five  leagues  from  the  land,  at  anchor  on  the 
high  seas,"  she  was  not  within  the  territorial  jurisdiction  of  Portugal 
and  not  liable  to  seizure,  and  that  though  the  supercargo  went 
ashore  he  went  for  water,  which  was  legal,  and  did  not  bring  the 
vessel  into  port. 

For  the  defendant  it  was  argued  that  the  vessels,  though  four  or 
five  leagues  from  Cape  Baxos,  were  in  the  Bay  of  Para,  within  the 
jurisdiction  of  Portugal:  that,  besides,  the  rule  of  cannon  shot  did 
not  apply  to  the  right  to  cause  the  revenue  laws  to  be  respected,  as 
was  shown  by  the  laws  of  the  United  States;  that  the  act  of  the 
supercargo  in  going  ashore  really  for  the  purpose  of  trading,  and  the 
forcing  the  Portuguese  schooner  to  come  to,  would  have  given  a 
right  to  seize  the  vessels,  even  if  they  had  not  been  within  the  terri- 
torial jurisdiction. 

Marshall.  C.  J.,  delivering  the  opinion  of  the  court,  said  that  the 
right  of  a  nation  to  secure  itself  from  injury  might  *'  certainly  be 
exercised  beyond  the  limits  of  its  territory:"  that  a  nation  had  a 
right  to  prohibit  commerce  with  its  colonies,  and  to  use  the  necessary 
means  to  prevent  the  violation  of  the  laws  made  to  protect  that 
right :  that  these  means  did  not  appear  "  to  be  limited  within  any 
certain  marked  boundaries,  which  remain  the  same  at  all  times  and 
in  all  situations:"  that  in  "different  seas  and  on  different  coasts,  a 
wider  or  more  contracted  range"  would  l)e  assented  to:  that  in  the 
channel,  for  examjile.  where  a  great  part  of  the  counnerce  with  the 
north  of  Europe  i)asses  through  a  very  narrow  sea.  the  seizure  of 
vessels  suspected  of  attempting  an  illicit  trade  must  necessarily  be 
restricted  to  very  narrow  limits,  while  on  the  coast  of  South  America, 
seldom  frecjuented  l)v  vessels  but  for  purposes  of  illicit  trade,  the 
vigilance  of  the  (iovernment  might  "  be  extended  somewhat  further; "" 
and  that  the  fact  that  such  vigilance  was  not  always  restricted  to 
cannon  shot  was  shown  1)V  the  act  of  Congress  giving  revenue  cutters 
the  right  to  visit  vessels  four  leagues  from  the  coast.  The  seizure  of 
the  brig,  therefore,  was  not  an  act  of  lawless  violence. 
Church  r.  Hubbart  (18(^4 >.  2  ('ranch.  187.  2.34. 

••  It  is  true,  that  Chief  Justice  Marshall  [in  Church  t\  Hubbart] 
admitted  the  right  of  a  nation  to  secure  itself  against  intended  viola- 


§  151.]  THE    MARGINAL    SEA.  729 

tions  of  its  laws,  by  seizures  made  within  reasonable  limits,  as  to 
which,  he  said,  nations  must  exercise  comity  and  concession,  and  the 
exact  extent  of  which  was  not  settled ;  and.  in  the  case  before  the 
court,  the  four  leagues  were  not  treated  as  rendering  the  seizure 
illegal.  This  remark  must  now  be  treated  as  an  unwarranted  admis- 
sion. The  result  of  the  decision  is,  that  the  court  did  not  undertake 
to  pronounce  judicially,  in  a  suit  on  a  private  contract,  that  a  seizure 
of  an  American  vessel,  made  at  four  leagues,  by  a  foreign  power,  was 
void  and  a  mere  trespass.  In  the  subsequent  case  of  Rose  v.  Himely 
(Cranch.  iv,  2-H),  where  a  vessel  was  seized  ten  leagues  from  the 
French  coast,  and  taken  to  a  Spanish  port,  and  condemned  in  a 
French  tribunal  under  municipal  and  not  belligerent  laAv,  the  court 
held  that  any  seizures  for  municipal  purposes  beyond  the  territory  of 
the  sovereign  are  invalid;  assuming,  perhaps,  that  ten  leagues  must 
be  beyond  the  territorial  limits  for  all  purposes.  In  Hudson  v. 
Guestier  (Cranch,  iv,  293),  where  it  was  agreed  that  the  seizure  was 
municipal,  and  was  made  within  a  league  of  the  French  coast,  the 
majority  of  the  court  held  that  the  jurisdiction  to  make  a  decree  of 
forfeiture  was  not  lost  by  the  fact  that  the  vessel  was  never  taken  into 
a  French  port,  if  possession  of  her  was  retained,  though  in  a  foreign 
port.  The  judgment  being  set  aside  and  a  new  trial  ordered,  the  case 
came  up  again,  and  is  reported  in  Cranch.  vi.  281.  At  the  new  trial 
the  place  of  seizure  was  disiDuted :  and  the  judge  instructed  the  jury, 
that  a  municipal  seizure,  made  within  six  leagues  of  the  French  coast, 
was  valid,  and  gave  a  good  title  to  the  defendant.  The  jury  found  a 
general  verdict  for  the  defendant,  and  exceptions  Avere  taken  to  the 
instructions.  The  Supreme  Court  sustained  the  verdict ;  not,  how- 
ever, upon  the  ground  tliat  a  municii)al  seizure  made  at  six  leagues 
from  the  coast  was  valid,  but  on  the  ground  that  the  French  decree 
of  condemnation  must  be  considered  as  settling  the  facts  involved; 
and  if  a  seizure  within  a  less  distance  from  shore  was  necessary  to 
jurisdiction,  the  decree  may  have  determined  the  fact  accordingly, 
and  the  verdict  in  the  circuit  court  did  not  disclose  the  opinion  of  the 
jury  on  that  ])oint.  The  judges  differed  in  stating  the  principle  of 
this  case  and  of  Kose  r.  Himely;  and  the  report  leaves  the  difference 
somewhat  obscure. 

'•  This  sul^ject  was  discussed  incidentally  in  the  case  of  the  Cagliari, 
which  was  a  seizure  on  the  high  seas,  not  for  violation  of  revenue 
hiws.  but  on  a  chiim,  somewhat  mixed,  of  j)iracy  and  war.  In  the 
opinion  given  by  Dr.  Twiss  to  the  Sardinian  (lovernment  in  that  case, 
the  learned  writer  refers  to  Avhat  has  sometimes  been  treated  as  an 
exceptional  right  of  search  and  seizure,  for  revenue  purposes,  beyond 
the  marine  league,  and  says  that  no  such  exception  can  be  sustained 
as  a  right.     He  adds :  '  In  ordinary  cases,  indeed,  where  a  merchant 


730  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  151. 

ship  has  been  seized  on  the  high  seas,  the  sovereign  whose  flag  has 
been  violated  waives  his  privilege,  considering  the  offending  ship  to 
have  acted  with  mala  fdes  towards  the  other  state  with  which  he  is  in 
amity,  and  to  have  consequently  forfeited  any  just  claim  to  his  pro- 
tection.' He  considers  the  revenue  regulations  of  many  states,  au- 
thorizing visit  and  seizure  beyond  their  Avaters,  to  be  enforceable  at 
the  peril  of  such  states,  and  to  rest  on  the  express  or  tacit  permission 
of  the  states  whose  vessels  may  be  seized. 

"  It  may  be  said  that  the  principle  is  settled  that  municipal  seizures 
cannot  l)e  made,  for  any  purpose,  beyond  territorial  waters.  It  is 
also  settled  that  the  limit  of  these  waters  is,  in  the  absence  of  treat}', 
the  marine  league  or  the  cannon-shot." 

Dana,  note  lUS.  Wheaton's  Int.  Law.  §  179.  pp.  Ii.">l>-L't>0. 

By  Article  V.  of  the  treaty  of  Guadalupe-Hidalgo,  February  2, 
1848,  it  was  provided  that  the  boundary  between  the  United  States 
and  Mexico  should  "  commence  in  the  Gulf  of  Mexico,  three  leagues 
from  land,  opposite  the  mouth  of  the  l\io  Grande." 

This  phrase  is  repeated  in  Article  I.  of  the  treaty  of  December  30, 
1853.  relating  to  the  cession  to  the  United  States  of  the  Mesilla 
Valley. 

"  I  have  had  the  honor  to  receive  your  note  of  the  30th  April  last 
objecting,  on  behalf  of  the  British  Government,  to  that  clause  in  the 
fifth  article  of  the  late  treat}'  between  Mexico  and  the  Ignited  States 
by  which  it  is  declared  that  '  the  boundary  line  between  the  two 
Republics  shall  commence  in  the  Gulf  of  Mexico  three  leagues  from 
land.'  insteatl  of  one  league  from  land,  which  you  observe  '  is  ac- 
knowledged by  international  law  and  practice  as  the  extent  of  terri- 
torial jurisdiction  over  the  sea  that  washes  the  coasts  of  states.' 

'*  In  answer  I  have  to  state,  that  the  stipulation  in  the  treaty  can 
only  affect  the  rights  of  Mexico  and  the  United  States.  If  for  their 
mutual  convenience  it  has  been  deemed  proper  to  enter  into  such  an 
arrangement,  third  parties  can  have  no  just  cause  of  complaint.  The 
Government  of  the  United  States  never  intended  by  this  stipulation 
to  question  the  rights  which  (rreat  Britain  or  any  other  power  may- 
possess  under  the  law  of  nations." 

Mr.  Buchanan.  Sec.  of  State,  to  Mr.  Cranipton.  British  niin..  Aug.  19.  1848, 
MS.  Notes  to  Gr.  Britain.  VII.  18.'>. 

"  I  liave  the  honor  to  acknowhHlge  the  receipt  of  your  letter  of  yesterday 
and  to  return  the  desjiatch  of  Conuuodore  H.  II.  Bell,  which  acconi- 
paTiied  it.  The  stipulation  in  the  treaty  of  Guadalupe- Hidalgo  hy 
which  the  boundary  between  the  I'nited  States  was  begun  in  the 
(iulf  three  leagues  from  land  is  still  in  force.  It  was  intended,  how- 
ever, to  regulate  within  those  limits  the  rights  and  duties  of  the 
parties  to  the  instrument  only.  It  could  not  affect  the  rights  of  any 
other  power  under  the  law  of  nations.     It  seems  that  the  peculiarity 


§  151.]  THE    MARGINAL   SEA.  731 

of  the  clause  adverted  to  attracted  tlie  notice  of  the  British  Govern- 
ment. A  copy  of  the  reply  of  this  Department  upon  the  subject  is 
he^e^vith  enclosed."  (Mr.  Seward,  Sec.  of  State,  to  Mr.  Welles,  Sec. 
of  Navy,  Sept.  3,  1863,  (>1  MS.  Dom.  Let.  499.) 

"  We  have  always  understood  and  asserted  that,  pursuant  to  public 
law,  no  nation  can  rightfully  claim  jurisdiction  at  sea  beyond  a 
marine  league  from  its  coast. 

"  This  opinion  on  our  part  has  sometimes  been  said  to  be  incon- 
sistent with  the  facts  that,  by  the  laws  of  the  United  States,  revenue 
cutters  are  authorized  to  board  vessels  anywhere  within  four  leagues 
of  their  coasts,  and  that  by  the  treaty  of  Guadalupe-Hidalgo,  so 
called,  between  the  United  States  and  Mexico,  of  the  2d  of  February, 
1848.  the  boundary  line  Ijetween  the  dominions  of  the  parties  begins 
in  the  Gulf  of  Mexico,  three  leagues  from  land. 

"  It  is  believed,  however,  that  in  carrying  into  effect  the  authority 
conferred  by  the  act  of  Congress  referred  to,  no  vessel  is  boarded,  if 
boarded  at  all,  except  such  a  one  as,  upon  being  hailed,  may  have 
answered  that  she  was  bound  to  a  port  of  the  United  States.  At  all 
events,  although  the  act  of  Congress  was  passed  in  the  infancy  of 
this  Government,  there  is  no  known  instance  of  any  complaint  on  the 
part  of  a  foreign  Government  of  the  trespass  by  a  commander  of 
a  revenue  cutter  upon  the  rights  of  its  flag  under  the  law  of  nations. 

"  In  respect  to  the  provision  in  the  treat}^  with  Mexico,  it  may  be 
remarked  that  it  was  probably  suggested  by  the  passage  in  the  act  of 
Congress  referred  to,  and  designed  for  the  same  purpose,  that  of  pre- 
venting smuggling.  By  turning  to  the  files  of  your  legation,  you  will 
find  that  Mr.  Bankhead,  in  a  note  to  Mr.  Buchanan  of  the  30th  of 
April,  1848,  objected  on  behalf  of  Her  Majesty's  Government,  to  the 
provision  in  question.  Mr.  Buchanan,  however,  replied  in  a  note  of 
the  10th  of  August,  in  that  year,  that  the  stipulation  could  only  affect 
the  rights  of  Mexico  and  the  United  States,  and  was  never  intended  to 
trench  upon  the  rights  of  Great  Britain,  or  of  any  other  power  under 
the  law  of  nations." 

Mr.  Fish.  Sec.  of  State,  to  Sir  Edward  Thornton.  Brit.  niin..  Jan.  22,  187.">, 
For.  Kel.  IST.",.  I.  (mM;."^). 

An  attack  by  Mexican  officials  on  merchant  vessels  of  the  United 
States,  when  distant  more  than  three  miles  from  the  Mexican  coast,  on 
the  ground  of  breach  of  revenue  laws,  is  an  international  offense, 
which  is  not  cured  by  a  decree  in  favor  of  the  assailants,  collusively 
or  corruptly  maintained  in  a  Mexican  court. 

Mr.  lOvarts.  Sec.  of  State,  to  Mr.  Foster.  Apr.  19.  1879.  MS.  Inst.  Mex. 
XIX.  570. 

In  1889-1890.  a  correspondence  took  place  between  the  United  States  and 
Mexico  in  relation  to  the  execution  of  Mexican  criminal  process  on 
the   American   schooner   Robert   Ruff,   when,   as   the   master   of   the 


732  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  152. 

schooner  allege<l,  she  was  nine  miles  from  land.  The  Mexican  Gov- 
ernment, on  the  other  hand,  stated  that  the  schooner  was  only  two 
and  a-half  miles  from  the  coast;  that  she  had  heen  farther  out  to  sea, 
hut  had  tacked  and  come  inshore  in  order  to  meet  a  boat  carrying 
a  fugitive  whom  she  was  assisting  to  escape.  (For.  Hel.  1890,  620- 
()li;i.  (;l'!M).S1.     See.  also.  For.  Kel.  18S!>.  (tll-r.U.) 

''  I  have  received  your  Xo.  108  of  the  29th  of  January  ultimo,  with 
its  accompanying  copy  and  transhition  of  the  note  addressed  to  you 
on  the  24th  of  that  month  by  the  minister  of  state,  giving  the  results 
of  the  investigation  ordered  by  the  Spanish  (jovernment  of  the  cir- 
cumstances under  which  the  American  vessels  Ethel  A.  Merritt, 
Eunice  P.  Xewcomb,  George  Washington,  and  Hattie  Haskell  were 
fired  upon  and  visited  by  Spanish  gunboats,  near  the  island  of  Cuba, 
in  May,  June,  and  July  of  last  year.  .  .  . 

"  The  wide  contradiction  bt^tween  the  several  statements  does  not 
suffice  to  bring  the  position  of  three  of  the  vessels  at  the  time  within 
the  customary  nautical  league.  This  (lovernment  must  adhere  to  the 
three-mile  rule  as  the  jurisdictional  limit,  and  the  cases  of  visitation 
without  tliat  line  seem  not  to  be  excused  or  excusable  under  that  rule. 

"  This  (irovernment  frankly  and  fully  accepts  the  disclaimer  of  the 
Government  of  His  Majesty  that  any  intention  of  discourtesy  existed 
in  these  proceedings.  It  insists,  however,  on  the  importance  of  a 
clear  understanding  of  the  jurisdictional  limit.  It  insists  likewise, 
on  the  distinction  between  the  verification  (according  to  the  usual 
procedure  of  revenue  cruisers),  within  a  reasonable  range  of  ap- 
proach, of  vessels  seeking  Sjjanish  ports  in  the  due  j)ursuit  of  trade 
therewith,  and  the  arrest  by  armed  force,  without  the  jurisdictional 
three-mile  limit,  of  vt'ssels  not  bound  to  Spanish  ports.  The  consid- 
erations on  these  heads,  advanced  in  my  instruction  to  you  of  August 
11,  seem  not  to  have  attracted  from  His  Majesty's  Government  the 
attention  due  to  their  precise  bearing  on  at  least  three  of  the  cases 
in  liand  under  the  express  admissions  of  Mr.  Elduayen's  note."' 

Mr.  Evarts.  Sec.  of  State,  to  Mr.  Faircliild.  min.  to  Spain.  Xo.  111.  March 
;{.  1S81.  For.  Hel.  ISSl.  lo.")!. 

(7  I    PKoi'osi  I)  i;xTi;.\sio\  ok  tk.kritoriai.  zone. 

§  152. 

"  Spain  claims  a  maritime  jurisdiction  of  six  miles  around  the 
island  of  Cuba.  In  ])ressing  this  claim  upon  the  consideration  of  the 
United  States,  Spain  has  used  tiie  argument  that  the  modern  improve- 
ment in  gunnery  renders  the  ancient  limit  of  a  marine  league  inade- 
([uate  to  the  security  of  neutral  states. 

*•  AMien  it  ^vas  understood  at  Paris  that  an  engagement  was  likely 
to  come  off  before  Cherbourg  between  the  United  States  ship  of  war 


§  152.]  THE    MARGINAL    SEA.  733 

Kearsarge  and  the  pirate  Alabama,  the  French  Government  remon- 
strated with  both  parties  against  firing  within  the  actual  reach  of  the 
shore  by  cannon  balls  fired  from  their  vessels,  on  the  ground  that  the 
effect  of  a  collision  near  the  coast  would  be  painful  to  France. 

"  For  these  reasons  I  think  that  the  subject  may  now  be  profitably 
discussed,  but  there  are  some  preliminary  considerations  which  it  is 
deemed  important  to  submit  to  Her  Majesty's  Government : 

"•  First.  That  the  United  States,  being  a  belligerent  now,  when  the 
other  maritime  states  are  at  peace,  are  entitled  to  all  the  advantages 
of  the  existing  construction  of  maritime  hnv,  and  cannot,  Avithout  seri- 
ous inconvenience,  forego  them. 

"  Secondly.  That  the  United  States,  adhering  in  war,  no  less  than 
when  they  were  in  the  enjoyment  of  peace,  to  their  traditional  liber- 
ality towards  neutral  rights,  are  not  unwilling  to  come  to  an  under- 
standing upon  the  novel  question  which  has  thus  been  raised  in  conse- 
quence of  the  improvement  in  gunnery. 

'•  But,  thirdly,  it  is  manifestly  proper  and  important  that  any  such 
new  construction  of  the  maritime  law  as  Great  Britain  suggests  should 
be  reduced  to  the  form  of  a  precise  proposition,  and  then  that  it  should 
receive,  in  some  manner,  by  treatv  or  otherwise,  reciprocal  and  oblig- 
atory acknowledgments  from  the  principal  maritime  powers. 

"  Upon  a  careful  examination  of  the  note  you  have  addressed  to 
me.  the  suggestions  of  Her  Majesty's  Government  seem  to  be  expressed 
in  too  general  terms  to  be  made  the  basis  of  discussion.  Suppose,  by 
way  of  illustration,  that  the  utmost  range  of  cannon  now  is  five  miles, 
are  Her  ^lajesty's  Government  understood  to  propose  that  the  marine 
boundary  of  neutral  jurisdiction,  which  is  now  three  miles  from  the 
coast,  shall  be  extended  two  miles  beyond  the  present  limit?  Again, 
if  cannon  shot  are  to  be  fired  so  as  to  fall  not  only  not  upon  neutral 
land,  but  also  not  upon  neutral  waters,  then,  supposing  the  range  of 
cannot  shot  to  be  five  miles,  are  Her  Majesty's  (lovernment  to  be 
understood  as  proposing  that  cannon  shot  shall  not  be  fired  within  a 
distance  of  eight  miles  from  the  neutral  territory? 

'•  Finally,  shall  measured  distances  be  excluded  altogether  from  the 
statement,  and  the  proposition  to  be  agreed  upon  be  left  to  extend 
with  the  increased  range  of  gunnery,  or  shall  there  be  a  pronounced 
limit  of  jurisdiction,  whether  five  miles,  eight  miles,  or  any  other 
measured  limit?'' 

Mr.  Seward.  See.  of  State,  to  Mr.  Burnley.  Britisli  charge,  Sept.  16,  1864. 

Dip.  Cor.  18(^1.  II.  708-700. 
Field,  in  his  Int.  Code,  2nd  e<l.  §  28,  observes  that.  "  inasmuch  as  cannon 

shot  can  now  he  sent  more  than  two  leajiues.  it   seems  desirable  to 

extend  the  territorial  limits  accordiufily." 
Perels.  Das  Internationale  ofPentlicbe  Seerecht  der  Gegenwart,  §  13,  says: 
"  The  extension  of  the  line  depends  on  the  range  of  cannon  shot  at 


734  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  152. 

the  particular  period.     It  is.  however,  at  such  i>eriod  the  same  for 
all  coasts." 
See.  also.  Rivier.  Principes  du  Droit  des  Gens.  I.  145;  Bluntschli,  §  302; 
Heffter.  §  7."» :  Hall.  Int.  Law  (4th  ed.).  KMI. 

At  its  meeting  in  Paris  in  1894  the  Institut  de  Droit  International 
discussed  the  subject  of  territorial  waters,  and  particularly  the  ques- 
tion whether  the  juri.sdictional  limits  should  be  extended.  It  was 
generally  agreed  that  such  an  extension  should  be  made,  but  there 
were  differences  of  opinion  as  to  how  far  it  should  he  carried  and 
as  to  the  principles  on  which  it  should  be  based.  It  was  finally 
resolved  that  territorial  waters  should  extend  six  marine  miles  (60 
to  the  degree  of  latitude)  from  low-water  mark  for  all  purposes,  and 
that  in  time  of  war  the  bordering  neutral  state  might  fix,  either  by 
a  declaration  of  neutrality  or  by  special  notification,  a  neutral  zone 
be^'ond  the  six  miles  as  far  as  the  range  of  cannon  shot  for  all 
purposes  of  neutrality.  It  was  also  resolved  that  in  bays  the  terri- 
torial zone  should  follow  the  sinuosities  of  the  coast,  except  that  it 
should  be  measured  from  a  straight  line  across  the  bay  at  the  place 
nearest  the  entrance  where  the  distance  from  shore  to  shore  first 
l>ecame  contracted  to  twelve  marine  miles,  unless  usage  had  estab- 
lished a  more  extensive  jurisdiction. 

Institut  de  Droit   International,   Annuaire    (1894-95).   XIII.   329;    Hall, 
Int.  law   (4th  ed.).  IGl. 

'•  In  conformity  with  your  recent  oral  request,  I  have  now  the  honor 
to  make  further  response  to  your  unofficial  note  of  November  5th 
last,  which  was  acknowledged  on  the  Oth  of  the  same  month,  by 
informing  you  that  careful  consideration  would  be  given  to  the 
important  inquiry  therein  made  as  to  the  views  of  the  United  States 
Government  touching  the  expediency  of  settling  by  treaty  among 
the  interested  powers  the  question  of  the  extent  of  territorial  juris- 
diction over  maritime  waters. 

"This  (Tovornment  would  not  be  indisposed,  should  a  sufficient 
number  of  maritime  powers  concur  in  the  jjroposition,  to  take  part 
in  an  endeavor  to  reach  an  accord  having  the  force  and  effect  of 
international  law  as  well  as  of  conventional  regulation,  by  which  the 
territorial  jurisdiction  of  a  State,  bounded  by  the  high  seas,  should 
henceforth  extend  six  nautical  miles  from  low-water  mark,  and  at  the 
same  time  providing  that  this  six-mile  limit  shall  also  be  that  of  the 
neutral  maritime  zone. 

'•  I  am  unable,  however,  to  express  the  views  of  this  Government 
upon  the  subject  more  precisely  at  the  present  time,  in  view  of  the 
important  consideration  to  be  given  to  the  question  of  the  effect  of 
such  a  modification  of  existing  international  and  conventional  law 
upon  the  jurisdictional  boundaries  of  adjacent  States  and  the  applica- 


§  153.]  BAYS.  735 

tion  of  existing  treaties  in  respect  to  the  doctrine  of  headlands  and 
bays. 

"  I  need  scarcely  observe  to  you  that  an  extension  of  the  headland 
doctrine,  by  making  territorial  all  bays  situated  within  promontories 
t\\'elve  miles  apart  instead  of  six,  would  affect  bodies  of  water  now 
deemed  to  be  high  seas  and  whose  use  is  the  subject  of  existing  con- 
yentional  stipulations."' 

Mr.  Olney,  Sec.  of  State,  to  Mr.  de  AVeckherlin.  Dutch  min.,  Feb.  15,  189(5, 
MS.  notes  to  the  Netherhuids,  VIII.  :559. 

The  inquiry  of  the  Dutch  minister  I'eferred  to  the  discussion  of  the  ques- 
tion of  territorial  waters  by  the  Institute  of  International  Law  in 
181M.  (Mr.  Olney  to  Mr.  de  Weckherliu,  Nov.  9,  1895,  MS.  notes  to 
the  Neth..  VIII.  3.55.) 

See,  also.  Mr.  Olney.  Sec.  of  State,  to  Mr.  Dupuy  de  Lome,  Spanish  min., 
May  4,  1896,  MS.  notes  to  Spain.  XI.  163. 

8.  Bays. 

§  153. 

"■  The  es.sential  facts  are.  That  the  river  Delaware  takes  its  rise 

within  the  limits  of  the  United  States; 
e  aware    ay.  ,.  r^j^^^^^  -^^  ^j^^,  whole  of  its  descent  to  the  Atlantic 

Ocean,  it  is  covered  on  each  side  by  the  territory  of  the  United  States; 

••  That,  from  tide  water,  to  the  distance  of  about  sixty  miles  from 
the  Atlantic  Ocean,  it  is  called  the  river  Delaware ; 

"  That,  at  this  distance  from  the  sea,  it  widens  and  assumes  the 
name  of  the  Bay  of  Delaware,  which  it  retains  to  the  mouth ; 

''That  its  mouth  is  formed  l)v  the  capes  Henlopen  and  May;  the 
former  belonging  to  the  State  of  Delaware,  in  proper^  and  jurisdic- 
tion, the  latter  to  the  State  of  New  Jersey; 

''  That  the  Delaware  does  not  lead  from  the  sea  to  the  dominions 
of  any  foreign  nation  : 

"  That,  from  the  establishment  of  the  British  provinces  on  the 
banks  of  the  Delaware  to  the  American  Revolution,  it  was  deemed 
the  peculiar  navigation  of  the  British  Empire; 

"  That,  by  the  treaty  of  Paris,  on  the  third  day  of  September, 
1TS8,  his  Britannic  Majesty  relinquished,  with  the  privity  of  France, 
the  sovereignty  of  those  provinces,  as  well  as  of  the  other  provinces 
and  colonies; 

''And  that  the  Crrange  was  arrested  in  the  Delaware,  within  the 
capes,  before  she  had  reached  the  sea,  after  her  departure  from  the 
port  of  Philadelphia. 

"  It  is  a  principle,  firm  in  reason,  supported  by  the  civilians,  and 
tacitly  approved  in  the  document  transmitted  by  the  French  minister, 
that,  to  attack  an  enemy  in  a  neutral  territory,  is  absolutely  unlawful. 


73r>  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  153. 

"  Hence  the  inquirv  is  reduced  to  this  simple  form,  whether  the 
phice  of  seizure  was  in  the  territory  of  the  United  States? 

"'  From  a  question  ()ri<J^inatino:  under  the  forejroing  circumstances, 
is  obviously  and  pro[)erly  excluded  every  consideration  of  a  dominion 
over  the  .sea.  The  solidity  of  our  neutral  right  does  not  depend,  in 
this  case,  on  any  of  the  various  distances  claimed  on  that  element 
l)y  dilferent  nations  possessing  the  neighboring  shore;  but  if  it  did, 
the  field  would  jjrobably  be  found  more  extensive,  and  more  favorable 
to  our  demand,  than  is  supposed  1)V  the  document  above  referred  to. 
For  the  necesmry  or  natural  law  of  nations,  unchanged  as  it  is,  in 
this  instance,  by  any  compact  or  other  obligation  of  the  United 
States,  will,  perhaps,  when  combined  with  the  treaty  of  Paris  in 
1783,  justify  us  in  attaching  to  our  coasts  an  extent  into  the  sea 
beyond  the  reach  of  cannon  shot. 

"  In  like  manner  is  excluded  every  consideration,  how  far  the  spot 
of  seizure  was  capable  of  being  defended  by  the  United  States.  For, 
although  it  will  not  be  conceded  that  this  could  not  be  done,  yet  will 
it  rather  appear,  that  the  mutual  rights  of  the  States  of  New  Jersey 
and  Delaware,  up  to  the  middle  of  the  river,  supersede  the  necessity 
of  such  an  investigation. 

'*  Xo;  the  corner  stone  of  our  claim  is.  that  the  United  States  are 
proprietors  of  the  lands  on  both  sides  of  the  Delaware,  from  its  head 
to  its  entrance  into  the  sea. 

''  The  high  ocean,  in  general,  it  is  true,  is  unsusceptible  of  becoming 
property.  It  is  a  gift  of  nature,  manifestly  destined  for  the  use  of 
all  mankind;  inexhaustible  in  its  benefits;  not  admitting  metes  and 
bounds.  But  rivers  may  be  appropriated,  because  the  reverse  is  their 
situation.  AVexe  they  open  to  all  the  world,  they  would  prove  the 
inlets  of  perpetual 'disturbance  and  discord;  would  soon  be  rendered 
barren  by  the  number  of  those  who  Avould  share  in  their  products; 
and  moreover  they  nuiy  be  defiiunl. 

"  •  A  river,  considered  merely  as  such,  is  the  property  of  the  ])eople 
through  whose  lands  it  flows,  or  of  him  under  whose  jurisdiction  that 
people  's.* — Oi'of.,  b.  2,  c.  2,  s.  12. 

"'Rivers  might  be  held  in  proi)erty:  though  neither  where  they 
rise,  nor  where  they  discharge  themselves,  be  within  our  territory,  but 
they  join  to  water  above  and  l)el()w.  or  the  sea.  It  is  sufficient  for  us 
that  the  larger  })ortion  of  water,  that  is.  the  sides,  is  shut  up  in  our 
banks,  and  that  the  river,  in  respect  to  our  land,  is  itself  small  and 
insignificant.' — Grot.,  b.  2,  c.  3,  s.  7;  an<l  Barheyrac  in  liis  note,  sub- 
joins, that  neither  of  these  is  necessary. 

"  '  Rivers  may  be  the  property  of  whole  states.' — Puff.,  b.  3,  c.  3,  s.  4. 

'* '  To  render  a  thing  capable  of  being  appropriated,  it  is  not  strictly 
necessary  that  we  should  enclose  it,  or  be  able  to  enclose  it,  wdthin 


§  153.]  BAYS.  737 

artificial  iKnincls.  or  such  as  are  different  from  its  own  substance;  it 
is  sufficient,  if  tlie  compass  and  extent  of  it  can  be  any  way  deter- 
mined. And  therefore  Grotius  hath  given  himself  a  needless  trouble, 
when,  to  prove  rivers  (•ai)able  of  j)roi)erty.  he  useth  the  argument, 
that,  although  they  are  bounded  by  the  land  at  neither  end,  but  united 
to  the  other  rivers  or  the  sea,  yet  it  is  enough  that  the  greater  part  of 
them — that  is.  their  sides — are  enclosed.' — P^'^-^  b.  4.  c.  5,  s.  3. 

"  '  When  a  nation  takes  possession  of  a  country  in  order  to  settle 
there,  it  possesses  everything  included  in  it,  as  lands,  lakes,  rivers,' 
&Q.—VatteL  b.  1,  c.  '22,  s.  l>()(). 

••  To  this  list  might  be  added  Bynkershoek  and  Selden.  But  the 
dissertation  of  the  former,  de  domlnio  mor'tx,  cannot  be  quoted  with 
advantage  in  detachment;  and  the  authority  of  the  latter,  on  this 
head,  may,  in  the  judgment  of  some,  partake  too  much  of  affection  for 
the  hypothesis  of  niare  rJai/st/?n.  As  Selden,  however,  sinks  in  influ- 
ence on  this  question,  so  nnist  Grotius  rise,  who  contended  for  the 
i/iare  Uhci'nm ;  and  his  accurate  commentator,  Rutherforth,  confirms 
his  principles  in  the  following  passage:  'A  nation,  by  settling  upon 
any  tract  of  land,  Avhich  at  the  time  of  such  settlement  had  no  other 
owner,  acquires,  in  respect  of  all  other  nations,  an  exclusive  right  of 
full  or  absolute  pro])erty.  not  only  in  the  land,  but  in  the  Avaters  like- 
wise that  are  included  within  the  land,  such  as  rivers,  pools,  creeks, 
or  bays.  The  absolute  proi)erty  of  a  nation,  in  Avhat  it  has  thus 
seized  upon,  is  its  right  of  territory.' — -2  Ruth.,  b.  2.  c.  9,  s.  6. 

'*  Congress,  too.  have  acted  on  these  ideas,  when,  in  their  collection 
laws,  they  ascribe  to  a  State  the  rivers  wholly  within  that  State. 

"  It  would  seem,  however,  that  the  spot  of  seizure  is  attempted  to 
lie  withdrawn  from  the  protection  of  these  respectable  authorities,  as 
being  in  the  Bin/  of  Delaware,  instead  of  the  rirer  Delaware. 

•■  "Who  can  seriously  doubt  the  identity  of  the  rirer  and  hay  of 
Delaware  (  How  often  are  different  j)ortions  of  the  same  stream 
denominated  differently?  This  is  sometimes  accidental;  sometimes, 
for  no  other  purpose  than  to  assist  the  intercourse  between  man  and 
man.  by  easy  distinctions  of  sj)ace.  Are  not  this  river  and  this  bay 
fed  by  the  same  springs  from  the  land,  and  the  same  tides  from  the 
ocean?  Are  not  both  doubly  flanked  by  the  territory  of  the  United 
States?  Have  any  local  laws,  at  tiny  time,  provided  variable  ar- 
rangements for  the  river  and  the  bay?  Has  not  the  jurisdiction  of 
the  contiguous  States  been  exercised  equally  on  both  ? 

"  But  suppose  that  the  rirer  was  dried  up.  and  the  ha}/  alone  re- 
mained, Grotius  continues  the  argument  of  the  7th  section,  of  the  3d 
chapter,  of  the  2(1  liook  above  cited,  in  the  following  words: 

"  '  By  this  instance  it  seems  to  appear,  that  the  property  and  domin- 

H.  Doc.  551 1:7 


788  NATIONAL  jurisdiction:  territorial  limits,       [i^  153. 

ion  of  tho  son  ini<;lit  belong  to  him,  who  is  in  possession  of  the  hinds 
on  l)oth  sides,  though  it  be  open  above,  as  a  ^ulf,  or  above  and  below, 
as  a  strait :  })rovided  it  is  not  so  j>:reat  a  part  of  the  sea,  that,  when  com- 
pared with  the  hmd  on  both  sides,  it  can  not  l)e  supposed  to  be 
some  part  of  them.  And  now.  what  is  thus  hnvful  to  one  king  or 
IK'ople,  may  be  also  lawful  to  two  or  three,  if  thev  have  a  mind  to 
take  possession  of  a  sea.  thus  enclosed  within  their  lands:  for  it  is  in 
this  manner  that  a  river,  which  separates  two  nations,  has  first  been 
possessed  1)V  both,  and  then  divided.' 

••  *  The  gulfs  and  channels,  or  arms  of  the  sea.  are,  according  io  the 
regular  course,  su[)i)osed  to  belong  to  the  peo[)le  with  whose  lands 
thev  are  encom})assed.' — I*>iff-'  b.  4.  c.  5,  s.  S. 

••  \'alin,  in  b.  T).  tit.  1,  p.  ()8.-).  of  his  connnentary  on  the  marine 
ordonnance  of  France,  virtually  acknowledges  that  particular  seas 
may  be  api)roi)riate(l.  After  reviewing  the  contest  between  (Jrotius 
and  Selden.  he  says:  '  S'il  (Selden)  s'en  fut  done  tenu  la.  on  plutot 
s'il  eut  distingue  Tocean  des  mers  particulieres.  et  meme  dans  Tocean 
I'etendue  de  mer  (|ui  doit  etre  censee  api)artenir  aux  souverains  des 
cotes  (|ui  en  sont  baignees.  sa  victoire  eut  ete  complette.' 

"  These  remarks  may  be  enforced  by  asking.  AVhat  nation  can  be 
injured  in  its  rights,  by  the  Delaware  being  appropriated  to  the 
Ignited  States!*  And  to  what  degree  may  not  the  United  States  be 
injured,  on  the  contrary  grounds  It  connnunicates  with  no  foivign 
dominion:  no  foreign  nation  has.  ever  befoiv.  exacted  a  connnunity 
of  right  in  it,  as  if  it  were  a  main  sea:  under  the  former  and  i)resent 
governments,  the  exclusive  jurisdiction  has  been  asserted  :  by  the  very 
first  collection  hnv  of  the  United  States,  passed  in  ITS*,),  the  county 
of  Cape  May,  which  inchides  Cape  May  itself,  and  all  the  waters 
thereof,  thei-etofore  within  the  jurisdiction  of  the  State  of  New  Jer- 
sey, are  c()mi)reiien(led  in  the  district  of  Piridgetown.  The  whole  of 
the  State  of  Dehiware,  reaching  to  Cai)e  Henloi)en,  is  made  one  dis- 
tinct. Nay.  unless  these  i)ositi()ns  can  be  maintained,  the  bay  of 
ChesajH'ake.  which,  in  the  s;une  hiw.  is  so  fully  assumed  to  be  within 
the  United  States,  and  which,  for  the  length  of  the  \"irginia  territory, 
is  sul)ject  to  the  process  of  scMcral  counties  to  any  ext<'nt.  will  become 
a  rendezvous  to  all  th(>  world,  without  any  i)ossible  control  from  the 
United  States.  Xor  will  the  evil  stop  hei'e.  It  will  recpiire  l)ut 
another  shoi't  liiiU  in  the  process  of  ivasoning.  to  disaj)pro|)riate  the 
mouths  of  some  of  our  most  important  rivers.  If.  as  Vattel  inclines  to 
think  in  the  j!*.>4th  section  of  his  first  book,  the  Romans  Avere  free  to 
aj)proi)i"iate  the  Mediterranean,  merely  because  they  secured,  by  one 
single  stroke,  the  immense  range  of  theii-  coast,  how  much  stronger 
must  the  vindication  of  the  United  States  be.  should  they  adopt  maxims 
for  prohibiting  foreigners  from  gaining,  without  permission,  access 
into  the  heart  of  their  countrv. 


ij  153.]  BAYS.  739 

"  This  inquiry  might  bo  onhirfred  by  a  minute  discussion  of  the 
practice  of  foreign  nations,  in  such  circumstances.  But  I  pass  it  b}': 
because  the  United  States,  in  the  connnencement  of  their  career,  ought 
not  to  be  precipitate  in  dechiring  their  approbation  of  any  usages, 
(the  precise  facts  concerning  which  we  may  not  thoroughly  under- 
stand) until  those  usages  shall  have  grown  into  principles,  and  are 
incorporated  into  the  law  of  nations;  and  because  no  usage  has  ever 
l)een  accepted,  which  shakes  the  foregoing  principles. 

•'  The  conclusion  then  is.  that  the  (rraiuje  has  been  seized  on  neutral 
ground.  If  this  be  adnutted,  the  duty  arising  from  the  illegal  act 
is  restitution.'' 

Opinion  of  Edmund  Kandolpli.  At.  CJon..  May  14.  1703.  on  the  ease  of  the 
Britisli  shi[)  (Jruiu/c.  seized  in  the  Delaware  Ray  hy  the  Kreneh 
frigate  UEmbuncadc.  Am.  State  I'ap.  For.  Kel.  I.  148;  1  Op.  At. 
(Jen.  :V2. 

"The  State  of  Delaware  has  uniformly  claimed  the  sole  an<l  exclusive 
jurisdiction  over  the  whole  of  the  Delaware  Bay  to  low-water  mark 
on  the  .Jersey  shore.  .  .  .  On  the  part  of  the  T'nited  States  there 
has  heen  no  resistance  of  this  claim.  .  .  .  On  the  part,  also,  of  the 
State  of  New  Jersey,  this  claim,  though  resisted  in  its  full  extent, 
has  been  partially  acceded  to  and  acknowledged,  that  State  having 
limited  her  claim  of  jurisdiction  to  the  main  ship  channel  of  the 
bay."     (State  r.  Morris.  1  Ilarr.  (Del.)  320.) 

The  Bristol  Channel  is  an  arm  of  the  sea  dividing  Enghind  from 

AA^ales.     Beginning  at  the  river  Severn,  it  attains,  in 

Bristol  Channel.      ■,        n  i.    ^  £  4.1  nrv  1  •  i        1  1 

its    decent    or    more    tliaii    DO    miles,    a    considerable 

width — much  greater  than  that  of  Conception  Bay.  in  Newfoundland. 

In  185S  certain  persons,  said  to  be  American  citizens,  were  indicted 

in  the  county  of  (ilamorgan  for  the  otfence  of  felonious  wounding, 

conunitted  on  an  American  vessel  in  the  Peiiarth  Koads,  in  Bristol 

Channel.  three-(iuarters  of  a  mile  from  the  coast  of  Glamorganshire, 

at  a  s])ot  never  left  dry  l)v  the  tide,  but  within  a  quarter  of  a  mile 

from  land  which  is  so  left  dry.     The  place  in  (piestion  was  Ijotween 

(rlamorganshire  and  the  Flat  Holms,  an  island  treated  as  i)art  of  the 

county  of  (ilamorgan.  the  ship  being  at  the  time  two  miles  from  the 

island  on  the  inside.     It  was  about  ten  miles  from  the  opposite  shore 

of  Somersetshire,  and  DO  miles  from  the  Koads  to  the  mouth  of  the 

channel.     It  was  held  that  the  |)art  of  the  sea  where  the  vessel  lay 

was  within  the  body  of  the  county  of  (ilamorgan.     Cockburn.  C.  J., 

delivering  the  o])ini()n  of  the  coui't,  said: 

"  The  s<'a  in  (juestion  is  part  of  the  Bristol  Channel,  both  shores  of 

which  form  part  of  England  and   Wales,  of  the  county  of  Somerset 

on  the  one  side  and  the  county  of  (ilamorgan  on  tlie  other.     AVe  are 

of  oj)inion  that,  looking  at  the  local  situation  of  this  sea,  it  must  be 

taken  to  l)elong  to  the  counties  resix'ctively  by  the  shores  of  which  it 

is  bounded:  and  the  fact  of  the  Holms,  between  which  and  the  shore 


740  NATIONAL   JURISDICTION  :    TERRITORIAL   LIMITS.  [§  153. 

of  the  County  of  (ilamorgan  the  place  in  question  is  situated,  having 
always  been  treated  as  part  of  the  parish  of  Cardiif  and  as  part  of 
the  county  of  (ilanior<jan.  is  a  strong  illustration  of  the  principle  on 
Avhich  Ave  proceed,  namely,  that  the  whole  of  this  inland  sea  between 
the  counties  of  Somerset  and  (ilamoigan  is  to  be  considered  as  within 
the  counties  by  the  shores  of  which  its  several  parts  are  respectively 
bounded.  We  are  therefore  of  opinion  that  the  place  in  question  is 
within  the  body  of  the  county  of  (ilamorgan.'' 

liejr.  '"•  ('unninjrliain  (1S.")!I).  Hell's  (\  C  72.  SC».     Si'o  a  (lisciissioii  of  this 

case  in  Direct  I'liited  States  I'able  Co.  v.  Anglo-American  Telegraph 

Co.  (1877),  L.  H.  2  App.  Cas.  :»4. 

Conception  Bay  lies  on  the  eastern  side  of  Newfoundland,  lietween 
two  promontories,  the  southern  ending  at  Cape  St. 
oncep  ion  ay.  p^^.m^^.j^  .ijj^|  ^\^^^  northern  at  Split  Point.  The  bay  is 
well  marked,  the  distance  from  its  head  to  Cape  St.  P^rancis  being 
about  40  miles,  and  from  its  head  to  Split  Point  about  50  miles.  The 
average  width  is  about  15  miles,  but  the  distance  from  Cape  St. 
Francis  to  Split  Point  is  rather  more  than  20  miles.  A  telegraph 
company  having  laid  a  cable  to  a  buoy  more  than  HO  miles  within  the 
bay.  but  at  no  point  within  3  miles  of  the  shore,  a  question  was  raised 
as  to  the  territorial  dominion  over  a  body  of  water  of  such  configura- 
tion and  dimensions  as  that  in  question.  The  court,  after  examining 
the  subject  in  the  light  of  the  common  law  and  of  the  law  of  nations, 
said : 

"  It  does  not  appear  to  their  lordships  that  jurists  and  text  writers 
are  agreed  wliat  are  the  rules  as  to  dimensions  and  configuration, 
which,  apart  from  other  considerations,  would  lead  to  the  conclusion 
that  a  bay  is  or  is  not  a  part  of  the  territory  of  the  state  possessing  the 
adjoining  coasts;  and  it  has  never,  that  they  can  find,  been  made  the 
ground  of  any  judicial  determination.  If  it  were  necessary  in  this 
case  to  lay  down  a  rule  the  difficulty  of  the  task  woidd  not  deter  their 
lordships  from  attempting  to  fulfill  it.  But  in  their  opinion  it  is  not 
necessary  so  to  do.  It  seems  to  them  that,  in  point  of  fact,  the  British 
Government  has  for  a  long  period  exercised  dominion  over  this  bay, 
and  that  their  claim  has  been  acquiesced  in  by  other  nations,  so  as  to 
show  that  the  bay  has  been  for  a  long  time  occupied  exclusively  by 
Cireat  Britain,  a  circumstance  which  in  the  tribunals  of  any  country 
would  be  very  important.  And  moreover  (which  in  a  British  tri- 
bunal is  conclusive)  the  British  legislature  has  by  acts  of  Parliament 
declared  it  to  be  part  of  the  British  territory,  and  part  of  the  country 
made  subject  to  the  legislature  of  Newfoundland." 

Dire<^-t  United  States  Cable  Co.  r.  Anglo-American  Telegraph  Co.  (1877), 
L.  H.  2  Ajip.  Cas.  '.i'M.  citing  Fitzheri)ert's  Abridgment.  "  Corone." 
.390:  C(.ke.  4  Institute.  140;  Hale.  De  .Jure  Maris,  p.  1,  c.  4;  Reg.  v. 
Cunningham,  Bell's  C.  C  8G ;  Kent's  Com.  29,  30. 


§  153.]  BAYS.  741 

By  section  5  of  the  act  of  June  5,  1882.  reestablishing  the  Court  of 
Commissioners  of  Ahibama  Chiims,  it  was  provided 
ay.  ^j^_^^  ^j^^  tribunal  should  receive  and  examine  certain 
classes  of  claims,  among  which  were  "  claims  directly  resulting  from 
damage  done  on  the  high  seas  by  Confederate  cruisers  during  the 
late  rebellion,  including  vessels  and  cargoes  attacked  on  the  high  seas, 
idthough  the  loss  or  damage  occurred  within  four  miles  of  the  shore."' 

In  the  case  of  Stetson  r.  The  United  States.  No.  3993,  class  1.  a 
claim  was  made  under  this  clause  for  the  destruction,  in  October,  1862, 
of  the  ship  AUef/onedn  in  the  Chesapeake  Bay,  by  a  Confederate 
naval  force,  while  she  lay  at  anchor  in  rough  water  south  of  the 
mouth  of  the  Rappahannock  River  and  opposite  Guinn's  Island.  It 
was  established  by  the  evidence  that  the  ship  was  at  the  time  of  her 
capture  and  destruction  more  than  four  miles  from  any  shore. 

The  court,  in  deciding  the  case,  observed  that  the  term  "  high  seas," 
as  used  by  legislative  bodies,  had  been  construed  to  express  widel}^ 
different  meanings.  As  defining  the  jurisdiction  of  admiralty  courts, 
it  was  held  to  mean  the  waters  of  the  sea  "  exterior  to  low-water 
mark."  In  international  law  it  had  been  held  to  mean  '^  only  so 
much  of  the  ocean  as  is  exterior  to  a  line  running  parallel  to  the 
shore  and  some  distance  therefrom,  commonly  such  distance  as  can 
be  defended  by  artillery  upon  the'shore,  and  therefore  a  cannon  shot 
or  a  marine  league  (3  nautical  or  4  statute  miles).''  It  was  in  this 
sense,  so  the  court  held,  that  the  term  was  used  in  the  act  of  June  5, 
1882;  and  therefore  such  parts  of  the  waters  of  the  Chesapeake  Bay 
as  were  within  4  statute  miles  of  either  shore  formed  no  part  of  the 
high  seas  in  the  sense  of  the  act.  But,  how  as  to  other  waters  of  the 
bay?  "The  distance."  said  the  court,  "between  Cape  Henry  and 
Cape  Charles,  at  the  entrance  of  the  bay,  is  said  to  be  12  miles,  and 
it  is  stated  that  lines  starting  from  points  between  the  capes.  4  miles 
from  each,  and  running  up  the  bay  that  distance  from  either  shore, 
would  not  intercept  each  other  within  125  miles  from  the  starting 
points.  The  evidence  shows  that  the  Alleganean  Avas  anchored  be- 
tween such  lines  at  the  time  of  destruction.  Was  she  upon  the  high 
seas  as  the  court  defines  the  statutory  term?  "  The  court,  after  citing 
Phillimore.  Int.  Law.  I.  §  200;  Gro'tius.  B.  II.  c.  3,  §§  7,  8;  Vattel.  I. 
B.  I.  c.  23.  §  291;  Wheat(m.  Int.  Law,  Dana's  ed.  255;  Kent,  Com.  I. 
29,  :50;  Woolsey,  Int.  Law,  i<  GO:  Wharton,  Int.  Law,  §  192:  Regina 
/•.  Cunningiiam,  Bell's  C.  C.  72;  Direct  Cable  Co.  r.  Anglo-American 
Tel.  Co.,  2  Aj)p.  Cas.  349,  discussed  the  physical  situation  of  the 
Chesapeake  Bay.  its  rise  and  inclusion  within  the  territory  of  the 
United  States,  and  the  legislation  of  the  United  States  and  of  the 
States  of  Maryland  and  of  Virginia  concerning  it.  and  reached  the 
following  conclusion: 

"  Considering,  therefore,  the  importance  of  the  question,  the  con- 


742  NATIONAL    JURISDICTION  :    TEKRITORIAL    LIMITS.  [§  153. 

ft<j!:uratioii  of  ('h('saj)oako  Bay,  the  fact  that  its  headlands  are  well 
marked,  and  hut  twelve  miles  apart,  that  it  and  its  tributaries  are 
wholly  within  our  own  territory,  that  the  boundary  lines  of  adjacent 
States  encompass  it :  that  from  the  earliest  history  of  the  country  it 
has  been  claimed  to  be  territorial  waters,  and  that  the  claim  has  never 
l)een  (juestioned:  that  it  cainiot  become  the  pathway  from  one  nation 
to  another;  and  remember i no-  the  doctrines  of  the  recognized  author- 
ities upon  international  law.  as  well  as  the  holdings  of  the  English 
courts  as  to  the  Bristol  Channel  and  Conception  Bay,  and  bearing 
in  mind  the  matter  of  the  brig  (h'ange  and  the  position  taken  by  the 
(xovernment  as  to  Delaware  Bay.  we  are  forced  to  the  conclusion  that 
Chesai)eake  Bay  nnist  be  held  to  be  wholly  within  the  territorial 
jurisdiction  and  authority  of  the  (iovernment  of  the  United  States 
!ind  no  part  of  the  *  high  seas '  within  the  meaning  of  the  term  as 
used  in  section  5  of  the  act  of  June  5,  1872.'' 

Second  r»»in*t  of  t'oinniissionors  of  Alabama  Claims.  Stetson  v.  TTnited 
States,  No.  •.\\)\Y.\,  class  1  :  Moore,  Int.  Arbitrations,  IV.  43:^2-4341.  The 
conrt.  in  referring  to  the  decision  in  the  case  of  the  <Ji(iii(/r,  said: 
"  It  will  hardly  he  said  that  Delaware  Bay  is  any  the  less  an  inland 
sea  than  ('hesai)eake  Hay.  Its  configuration  is  not  such  as  to  make 
it  so.  and  the  distance  from  Cape  May  to  Cape  llenlopen  is  appar- 
ently as  great  as  that  between  Cape  Henry  and  Cape  Charles." 

Complaint  was  made  against  defendant  for  taking  fish  with  a 
purse  seine  in  the  waters  of  Buzzards  Bay,  within 
ay.  ^^^^  jurisdiction  of  the  State  of  Massachusetts.  He 
was  found  guilty.  The  distance  between  the  headlands  at  the  mouth 
of  Buzzards  liay  is  more  than  one  and  less  than  two  marine  leagues. 
The  place  where  the  act  was  connnitted  was  within  the  bay,  about 
a  mile  and  a  (piai-ter  from  the  shore,  but  at  a  point  where  the  bay 
is  more  than  two  marine  leagues  wide.  By  the  public  statutes  of 
Massachusetts  (chap.  1.  sec.  i'2)  the  territorial  limits  of  the  Com- 
monwealth extend  one  marine  league  from  the  seashore  at  low- 
water  nnirk.  When  an  iidet  or  arm  of  the  sea  does  not  exceed  two 
marine  leagues  in  width  between  its  headlands  a  straight  line  from 
one  headland  to  the  other  is  ('(piivalent  to  the  shore  line,  and  the 
sovereignty  and  jurisdiction  of  the  Connnonwealth  are  declared  to 
extend  to  all  places  within  the  boundaries  thereof,  subject  to  the 
riglits  of  concurrent  jurisdiction  gi'anted  over  i)laces  ceded  to  the 
United  States.  "  We  regard  it  as  established."  said  the  court,  ''  that, 
as  between  nations,  the  mininunn  limit  of  the  territorial  jurisdiction 
of  a  nation  over  tide  waters  is  a  marine  league  from  the  coast,  and 
that  bays  wholly  within  its  territory  not  exceeding  two  marine 
leagues  in  width  at  the  mouth  are  within  this  limit,  and  that  included 
iu  this  territorial  jurisdiction  is  the  right  of  control  over  fisheries, 
whether  the  fish  be  migratory,  free-swimming  fish,  or  free-moving 


§  154.]  DETERMINATION    OF    BOUNDARIES.  743 

fish  like  lobsters,  or  fish  attached  to  or  imbedded  in  the  soil.  The 
open  sea  within  this  limit  is.  of  course,  subject  to  the  conunon  right 
of  navigation,  and  all  govennnents.  for  the  purpose  of  self-protection 
in  time  of  war.  or  for  the  prever.tion  of  frauds  on  the  revenue,  ex- 
ercise an  authority  beyond  this  limit.  We  have  no  doul^t  that  the 
British  Crown  will  claim  the  ownership  of  the  soil  in  the  bays  and  in 
tiie  open  sea  adjacent  to  the  coast  of  (Jreat  Britain  to  at  least  this 
extent  whenever  there  is  any  occasion  to  determine  the  ownership. 
The  authorities  are  collected  in  (xould  on  Waters,  Part  I.  cc.  1,  2,  and 
notes.  See  also  Neill  /•.  Duke  of  Devonshire,  8  App.  Cas.  135;  Gam- 
mell  i\  Commissioners  of  Woods  and  Forests,  3  Macq.  419;  Mowat  i\ 
:\IcFee.  5  Sup.  Ct.  of  Canada.  CC):  llie  Queen  /'.  Cubitt,  2-2  Q.  B.  D. 
(;22:   St.  -IC  &  47  Vict.  c.  22." 

C'oumionwealth  r.  Manchester   (1800),  l.~)2  Mass.  2.'^>0.     Affirmed  in  Man 
obester  /•.  Massachusetts,  i:{!»  V.  S.  240. 

9.    DeTKKM  I  NATION    OK    BOCNDARIES. 
(I)     POLITHAI.    QUESTIONS. 

§   154. 

In  a  controversy  between  the  United  States  and  a  foreign  nation 
as  to  boundary,  the  courts  will  follow  the  decision  of  those  Depart- 
ments of  the  (irovernment  to  which  the  assertion  of  its  interests 
against  foreign  powers  is  confided.  /.  e..  the  legislative  and  executive. 

Foster   r.  Neilson.  2  Pet.  2.")."' ;     (Jarcla   r.  Lee.   12  I'et.  i"ill  ;  Williams   r. 
Suffolk  Ins.  Co.,  IH  Pet.  41."> ;  .United  States  r.  Keynes.  9  Howard,  127. 

To  an  application  for  a  writ  of  jjrohibition  to  restrain  the  United 
States  district  court  in  Alaska  from  enforcing  a  sentence  of  forfeiture 
of  a  British  vessel  for  taking  seals  unlawfully  in  the  waters  of  Bering 
Sea  (In  re  Cooper,  138  U.  S.  404),  it  was  objected  that,  as  the  allega- 
tion of  want  of  jurisdiction  in  the  district  court  was  based  on  the 
alleged  lack  of  jurisdiction  of  the  United  States  at  the  place  ;^f 
seizure,  which  was  fifty-seven  miles  from  any  land,  and  as  this  (jues- 
tion  of  the  jurisdiction  of  the  United  States  was  then  a  subject  of 
controversy  with  (ireat  Britain,  the  judiciary  must  follow  the  action 
of  any  political  dej)artnieiit  of  the  (iovernment  or.  at  any  rate,  ab- 
stain from  a  decision  upon  the  (juestion  pending  its  political  deter- 
hiination.  Foi"  the  petitioner  it  was  urged  that,  even  assuming  that 
the  Executive  might  alone  bind  the  courts  in  res})ect  of  the  sover- 
eignty of  foreign  territory,  the  changes  in  foreign  goveinments,  tlie 
existence  of  civil  war  in  a  foreign  country,  and  the  character  of  a 
foreign  minister,  the  Executive,  without  the  clear  authority  of  an  act 
of  (\)ngress,  could  never.  I)V  determining  a  so-called  political  question 
or  Ijv  construing  an  act  of  Congiess  or  a  treaty,  conclude  the  right  of 


744  NATIONAL  jurisdiction:   territorial  limits.       r§  l.H'. 

persons  or  {property  under  the  Constitution  and  laws  of  the  United 
States  or  oonchide  the  courts  of  the  United  States  in  a  determination 
of  these  rights  (Little  r.  Barreme,  '2  Cranch,  170.  177;  United  States 
/•.  Rauscher.  119  U.  S.  407.  418)  :  and  it  was  argued  that  Congress, 
in  passing  the  act  of  ^Nlarch  2.  1S8J>.  in  relation  to  the  seals  in  Bering 
Sea.  deliberately  declined  to  determine  the  question  of  the  extent  of 
the  dominion  of  the  United  States  in  that  sea.  In  response  to  these 
arguments  the  court  said  that  it  did  not  appear  by  the  act  in  ques- 
tion that  Congress  had  "  invited  "  the  judicial  branch  of  the  Govern- 
ment to  determine  that  (piestion ;  but  that  there  was.  on  the  contrary, 
much  force  in  the  position  that  the  passage  of  the  act,  with  full 
knowledge  of  the  previous  executive  action  and  of  the  diplomatic 
situation,  justified  the  President  in  the  conclusion  that  it  was  his  duty 
•*  to  adhere  to  the  construction  already  insisted  upon  as  to  the  extent 
of  the  dominion  of  the  United  States,  and  to  continue  to  act  accord- 
ingly. If  this  be  so."  continued  the  court.  *'  the  application  calls 
upon  the  court,  while  negotiations  are  pending,  to  decide  whether 
the  Government  is  right  or  wrong,  and  to  review  the  action  of  the 
political  departments  upon  the  (juestion  contrary  to  the  settled  law 
in  that  regard.  Foster  /-.  Neilson.  2  Pet.  i.'iS:  Williams  i\  Suffolk 
Ins.  Co..  3  Sumner.  '270:  S.  C.  on  certificate  of  division,  18  Pet.  415; 
Luther  r.  Borden.  7  How.  1:  (Georgia  /•.  Stanton,  f)  AVall.  50:  Jones 
r.  United  States,  137  U.  S.  202:  Nabob  of  Carnatic  r.  East  India 
Company,  1  Ves.  Jr.  371 :  S.  C.  2  Ves.  Jr.  5(5 ;  Barclay  r.  Russell.  3 
A'es.  Jr.  424 :  Penn.  r.  Baltimore.  1  Ves.  Sr.  444  .  .  . 

"  We  are  not  to  be  understood,  however,  as  underrating  the  weight 
of  the  argument  that  in  a  case  involving  private  rights,  the  court 
may  l)e  obliged,  if  those  rights  are  dependent  upon  the  construction 
of  acts  of  Congress  or  of  a  treaty,  and  the  case  turns  upon  a  (piestion, 
public  in  its  nature,  whicli  has  not  been  determined  by  the  political 
departments  in  the  form  of  a  law  sj^ecifically  settling  it,  or  authoriz- 
ing the  Executive  to  do  so.  to  render  judgment.  *  since  we  have  no 
more  right  to  decline  the  jurisdiction  which  is  given  than  to  usurp 
that  which  is  not  given.* 

••  But  we  need  not  go  further  in  this  direction,  as  our  decision 
rests  upon  narrower  grounds." 

In  re  Coijper  (1S92).  UP,  V.  S.  472,  r.0L»-50r>.  The  court  then  decided  that 
as,  upon  the  face  of  the  Iil>el.  the  facts  found,  and  the  final  decree, 
none  of  which  disclosed  the  exact  jdace  of  the  seizure,  the  district 
court  clearly  had  jurisdiction,  the  writ  of  jtrohihition  should  not 
Issue.  The  ohservations  of  the  court,  therefore,  on  the  iwlitical  ques- 
tion, though  suggestive,  were  not  material  to  the  decision  actually 
made. 

*'  AVho  is  the  sovereign,  <Ie  jxrc  or  de  facto,  of  a  territory  is  not  a 
judicial  l)Ut  a  political  question,  the  determination  of  which  by  the 


§  loo.]  DETERMINATION    OF    BOUNDARIES.  745 

legislative  and  executive  (lepartnients  of  any  government  conclusively 
binds  the  judges,  as  well  as  all  other*  officers,  citizens,  and  subjects 
of  that  government.  This  principle  has  always  been  upheld  by  this 
court,  and  has  been  affirmed  under  a  great  variety  of  circumstances. 
Gelston  /•.  Hoyt,  H  AVheat.  246,  3-24;  United  States  \\  Palmer,  3  Wheat. 
610;  The  Divina  Pastora,  4  Wheat.  52;  Foster  i\  Neilson,  2  Pet. 
253,  307,  309 ;  Keane  /-.  McDonough,  8  Pet.  308 ;  Garcia  r.  Lee,  12  Pet. 
511,  520;  AVilliams  r.  Suft'olk  Ins.  Co.,  13  Pet.  415;  United  States  r. 
Yorba,  1  Wall.  412,  423;  United  States  r.  Lynde,  11  Wall.  G32,  638. 
It  is  equally  well  settled  in  P^ngland.  The  Pelican,  Edw.  Adm. 
appx.  1):  Taylor  r.  Barclay,  2  Sim.  213;  Emperor  of  Austria  v.  Day, 
3  DeG.,  F.  &  J.  217,  221,  233;  Republic  of  Peru  r.  Peruvian  Guano 
Co.,  36  Ch.  I).  489,  497 ;  Republic  of  Peru  r.  Dreyfus,  38  Ch.  D.  348, 
356,  359." 

Jones  r.  United  States  (1800).  I.ST  U.  8.  202,  212-21.3.  Gray.  .T.,  delivering 
the  oi»ini()n  of  tlie  com't. 

"  In  United  States  r.  Arredondo  the  court,  referring  to  Foster  v. 
Xeilson,  said :  '  This  court  did  not  deem  the  settlement  of  boundaries 
a  judicial  but  a  political  question — that  it  was  not  its  duty  to  lead, 
hut  to  folloir  the  action  of  the  other  departments  of  the  Government.' 
The  same  principles  were  recognized  in  Cherokee  Xation  v.  Georgia 
and  (xarcia  r.  Lee.  These  authorities  .  .  .  relate  to  questions  of 
boundary  between  independent  nations." 

United  States  r.  Texas  (1892),  14:i  U.  S.  (>21,  G;39.  discussing  Foster  v. 
Neilson.  2  I'et.  2.V..  :!()7.  -'iOO  :  Cherokee  Nation  c.  (ieorgia.  .">  Pet.  1, 
21  :  T'nited  States  r.  Arredondo.  (>  Pet.  001.  711  ;  and  Garcia  r.  Lee, 
12  Pet.  r.ll.  r.lT. 

''AH  courts  of  justice  are  bound  to  take  judicial  notice  of  the  terri- 
torial extent  of  the  jurisdiction  exercised  by  the  government  Avhose 
laws  they  administer,  or  of  its  recognition  or  denial  of  the  sov- 
ereignty of  a  foreign  power,  as  appearing  from  the  public  acts  of  the 
legislature  and  executive,  although  those  acts  are  not  formally  put  in 
evidence,  nor  in  accord  with  the  pleadings.  United  vStates  /•.  Reynes, 
9  How.  127;  Kennett  /•.  Chambers,  14  How.  38;  Hoyt  /'.  Russell, 
117  U.  S.  401.  404;  Coftee  r.  Grover,  123  U.  S.  1;  State  /'.  Dunwell. 
3  R.  I.  127:  State  /•.  Wagner,  61  Maine,  178;  Taylor  r.  Barclay,  and 
I]iTi|)eror  of  Austria  r.  Day,  above  cited;  I  (Jreeid.  Ev.  section  6." 
Jones  r.  Uuite<l  Stales  (IMOO),  i:?7.U.  S.  20L'.  -JH. 

(2)     km; UTS    OK    INDIVUXAI.S. 

8    loo- 

By  the  compact  settling  the  boundary  l)etween  Virginia  and  Ten- 
nessee it  was  declared  tliat  all  titles  and  claims  (o  land  derived  from 


746  NATIONAL    JURISDICTION:    TERRITORIAL   LIMITS.  [§  I'^S. 

<Mtli(>r  irovoninuMit  in  tlu'  disputed  territory  should  remain  as  secure 
!is  if  derived  from  the  irovernment  within  whose  limits  they  fell 
under  the  settlement.  Two  contesting  titles,  derived  from  grants 
from  Virginia,  were  set  up  to  lands  which  fell  in  Tennessee.  One 
t)f  the  parties  brought  an  action  of  ejectment,  in  which  he  offered 
certain  evidence.  Objection  was  made  to  the  evidence  on  the  ground 
that  it  tended  to  establish  only  an  equitable  title,  acquired  j^reviously 
to  the  grant,  and  that  this  was  iiuulmissible  because  such  a  claim 
could  not  be  asserted  in  an  action  of  ejectment  in  V^irginia.  Jlehh 
that  remedies  in  res])ect  to  real  estate  were  governed  by  the  Jex  loci 
rei  sitic;  that  there  was  nothing  to  show  that  the  two  States  in  ques- 
tion intended  to  vary  this  rule  in  cases  within  the  compact:  and  that 
the  acts  of  their  legislatures,  i)assed  to  give  the  compact  effect,  should 
be  construed  as  relating  only  to  the  validity  of  titles,  leaving  the 
remedies  to  i)e  I'egulated  by  the  Ice  fori. 

I{.il)iiis<)ii  r.  (":iini)lK'll   (ISIS).  :',  Wlu'atoii,  212. 

It  belongs  to  sovereignties  to  fix  boundaries  between  their  respec- 
tive  jurisdictions;  and   when    fixed    by   c<)mi)act,   they    become   con- 
clusive upon  their  citizens  and  bind  their  rights. 
Poole  r.  FUvfter.  11  I't'ters,  IS."). 

(irants  made  by  the  Spanish  authorities  in  territory  which,  upon  the 
subsequent  settlement  of  a  disjjuted  l)oundarv  line,  was  determined 
to  belong  to  one  of  the  United  States,  are  void. 
Iiol)insoii  r.  .Minor.  Ut  Ilowanl,  U27. 

"'  Suffice  it  to  say.  that  the  (irovernment  of  the  United  States,  ever 
since  the  accjuisition  of  Louisiana,  in  its  legislative,  executive,  and 
judicial  departments,  has  always  held  in  theoi-y.  and  l)y  repeated  acts 
of  Congress  and  jiulicial  decisions  asserted  in  jiractice.  that  the  terri- 
tory between  the  Perdido  and  the  Iberville  rightfully  constituted  a 
portion  of  the  province  of  Louisiana,  as  ceded  by  France  to  the  United 
States  on  the  ;HJth  of  April,  isoa:  and  that  the  treaty  between  His 
Catholic  Majesty  and  the  United  States,  of  the  'l-ld  February,  1819, 
has,  in  no  resjn'ct  whatever,  strengthened  the  claims  of  Spanish 
grantees  to  lands  embraced  within  these  limits.  This  being  the  fact, 
it  therefore  follows,  as  a  necessary  conse(|uence,  that  the  grant  by  the 
Spanish  intendant.  Morales,  of  land  within  this  territory,  on  tlie  '1A\\\ 
March.  Is04.  having  been  made  after  the  date  of  the  Louisiana  treaty, 
was  without  authority  and  is  void." 

-Mr.  r.uclianaii.  Sec.  of  State,  to  Mr.  C'ahleron  do  la  Barca.  .July  27,  1847. 

MS.  Notes  to  Si>aiii.  VI.   !.">.".. 
r.y  Art.   IV.  of  the  \Vel>ster-.Vslii)urtoii  treaty  of  An«.  <>.   1S42.  grants  of 

land  made  ity  either  party  in  the  territory  divided  hy  the  treaty  \ve?*e 


§§  156,  157.]  DETERMIXATIOX    OF    BOUNDARIES.  747 

i-oufinnetl,  as  well  as  "  all  (Hiuitai)le  iwssessory  claims,  arising  from  a 
possession  and  imi>rovement  of  any  lot  or  pan-el  of  land  l>y  the  per- 
•son  actually  in  possession,  or  by  those  under  whom  such  i)erson 
claims,  for  more  than  six  years  before  the  date  of  this  treaty." 

(."i)    ACCRETIOX. 

§  150. 

When  a  river  is  the  line  of  a/yfp'iu'ottM  boundary  l)etween  two  na- 
tions, by  a  treaty,  its  natural  channel  so  continues,  notwithstanding 
any  changes  of  its  course  by  accretion  or  decretion  of  either  bank; 
but  if  the  course  be  changed  al)ruptly  into  a  new  bed  by  irruption  or 
avulsion,  then  the  river  bed  becomes  the  boundary. 

Cushing.  At.-Gen.  n8."jG).  8  Op.  17.").     See.  also.  St.  Louis  r.  Rutz  (1801). 

i;{8  T".  S.  22().     See.  further,  as  to  accretion,  supra,  §  82,  i)]).  270-273, 

and  i)articularly  Neliraska  r.  Iowa  (181*2 ).  supra,  §  82,  pp.  272-278. 
As  to  dependent   isl.uids   f(n"nie<i   by  accretion,   and  the  measurement  of 

territorial  waters  therefrom,  see  the  case  of  the  Anna   (18<J5),  ~>  C. 

Hob.  .".7:?,  sui)ra,  §  82. 

By  the  convention  between  the  United  States  and  Mexico,  of  No- 
vember 1*2,  1884.  it  is  provided  that  the  dividing  line  l)etween  the  two 
countries,  in  the  Kio  Grande  and  Rio  Colorado,  shall,  in  conformity 
with  prior  treaties,  forever  "  follow  the  center  of  the  normal  channel 
of  the  rivers  named,  notwithstanding  any  alterations  in  the  banks  or 
in  the  course  of  those  rivers,  provided  that  such  alterations  be  effected 
by  natural  causes  through  the  slow  and  gradual  erosion  and  deposit 
of  alluvium  and  not  by  the  abandonment  of  an  existing  river  bed  and 
the  opening  of  a  new  one."     (Art.  T.) 

"  Any  other  change,  wrought  by  the  force  of  the  current,  whether 
by  the  cutting  of  a  new  l^ed,  or  when  there  is  more  than  one  channel 
1)V  the  deei)ening  of  another  channel  than  that  which  marked  the 
boundary  at  the  time  of  the  surve^ys  made  under  the  aforesaid  treaty 
[of  (iuadalupe  Hidalgo,  February  2,  1848 1,  shall  produce  no  change 
in  tlie  dividing  line  as  fixed  by  the  surveys  of  the  International 
Boundary  Conunissions  in  1852,  but  the  line  then  fixed  shall  continue 
to  follow  the  middle  of  the  original  channel  bed,  even  though  this 
should  become  wholly  dry  or  be  obstructed  l)y  dei)osits."     (Art.  II.) 

(4)    l'KKSCKn»TIO.\. 

§  157. 

The  legislature  of  Virginia,  in  1800,  and  the  legislature  of  Tennes- 
see, in  1801,  passed  acts  to  authorize  the  appointment  of  commis.sion- 
ers  to  determine  the  boundai-y  line  between  the  two  States.  In 
January,  1808.  the  connnissioners  made  a  rej)ort.  which  was  ado])ted 
l)V  the  respective  legislatures  of  the  two  States.     In  185(5,  fifty-four 


748  NATIOXAT.    JURISDICTION:    TERRITORIAL    LIMITS.  [>?  I'^T. 

years  after  tlie  line  was  settled,  Virginia  passed  an  act  reciting  that 
the  line  as  marked  hy  the  eonnnissioners  in  18()'2  had  from  lapse  of 
time  and  other  causes  become  indistinct,  and  authorizing  the  apj)oint- 
ment  of  eonnnissioners  to  cooj)erate  Avith  eonnnissioners  of  Tennessee 
in  running  and  marking  the  line  again.  Commissioners  were  ap- 
pointed l)v  both  States,  and  their  re-marking  of  the  line  was  approved 
by  the  legislature  of  Tenness(>e.  \'irginia  withheld  her  approval 
and  asked  for  the  appointment  of  new  eonnnissioners  to  re-run  and 
re-mark  the  line,  but  no  comi)laint  was  made  as  to  the  correctness  of 
the  line  run  and  established  in  180"2.  nor  was  any  complaint  made  by 
her  in  that  regard  until  within  a  recent  period.  At  length  Virginia 
filed  a  petition  in  the  Suprenie  Court  asking  that  the  compact  between 
the  two  States,  under  their  legislation  of  1803,  be  declared  null  and 
void,  as  having  been  entered  into  without  the  consent  of  Congress, 
and  praying  that  the  court  proceed  to  establish  the  true  boundary  line. 
The  court  held  that,  by  acts  of  Congress  passed  subseipiently  to  1803, 
the  compact  of  that  year  had  been  impliedly  consented  to  and  ap- 
proved; but  the  court  also  said: 

"  Independently  of  any  etfect  due  to  the  compact  as  such,  a 
boundary  line  between  states  or  provinces,  as  between  private  persons, 
which  has  been  run  out.  located  and  marked  upon  the  earth,  and 
afterwards  recognized  and  acquiesced  in  by  the  parties  for  a  long 
course  of  years,  is  conclusive,  even  if  it  be  ascertained  that  it  varies 
somewhat  from  the  courses  given  in  the  original  grant ;  and  the  line 
so  established  takes  effect,  not  as  an  alienation  of  territory,  but  as  a 
definition  of  the  true  and  ancient  boundary.  Lord  Hardwicke,  in 
Penn  r.  Lord  Baltimore,  1  Vesey  Sen.  444,  448;  Boyd  /'.  Graves, 
4  Wheat.  513;  Rhode  Island  r.  Massachusetts,  12  Pet.  GaT,  734; 
United  States  r.  Stone,  2  Wall.  525.  537;  Kellogg  /•.  Smith,  7  Cush. 
375.  382;  Chenery  r.  Waltham,  8  Cush.  327;  Hunt  on  Boundaries, 
(3d.  ed.)  30(). 

•'As  said  by  this  court  in  the  recent  case  of  the  State  of  Indiana  v. 
Kentucky,  (13()  V.  S.  479,  510.)  'it  is  a  principle  of  public  law, 
nniversally  recognized,  that  long  acquiescence  in  the  possession  of 
territory,  and  in  the  exercise  of  dominion  and  sovereignty  over  it,  is 
conclusive  of  the  nation's  title  and  rightful  authority."  In  the  case 
of  Rhode  Island  /'.  ^lassachusetts,  4  How.  51)1,  031).  this  court,  speak- 
ing of  the  long  possession  of  Massachusetts,  ami  the  delays  in  alleg- 
ing any  mistake  in  the  action  of  the  connnissicmers  of  the  colonies 
said:  *  Surely  this,  connected  with  the  lapse  of  time,  must  remove  all 
doubts  as  to  the  right  of  the  respondent  under  the  agreements  of 
1711  and  1718.  No  human  transactions  are  unaffected  by  time.  Its 
influence  is  seen  on  all  things  subject  to  change.  And  this  is  pecu- 
liarly the  cas(^  in  regard  to  nnitters  which  rest  in  memory,  and  which 
conse(iuently  fade  with  the  Japse  of  time  and  fall  with  the  lives  of 


§  158,]  DETERMIXATION    OF    BOUNDARIES.  749 

individuals.  For  the  security  of  rights,  whether  of  states  or  indi- 
viduals, long  possession  under  a  claim  of  title  is  protected.  And 
there  is  no  controversy  in  which  this  great  i^rinciple  may  be  invoked 
with  greater  justice  and  propriety  than  in  a  case  of  disputed 
boundary.' 

"■  Vattel.  in  his  Law  of  Nations,  speaking  on  this  subject,  says: 
'  The  tranquility  of  the  people,  the  safety  of  states,  the  happiness 
of  the  human  race  do  not  allow  that  the  possessions,  empire,  and 
other  rights  of  nations  should  remain  uncertain,  subject  to  dispute 
and  ever  ready  to  occasion  bloody  wars.  Between  nations,  therefore, 
it  becomes  necessary  to  admit  prescription  founded  on  length  of  time 
as  a  valid  and  incontestable  title.'  (Book  II.,  c.  11.  sec.  149.)  And 
Wheaton.  in  his  International  Law.  says:  'The  writers  on  natural 
law  have  questioned  how  far  that  peculiar  species  of  presumption, 
arising  from  the  lapse  of  time,  which  is  called  prescription,  is  justly 
applicable  as  between  nation  and  nation:  but  the  constant  and  ap- 
proved practice  of  nations  shows  that  by  whatever  name  it  be  called, 
the  uninterrupted  possession  of  territory  or  other  property  for  a  cer- 
tain length  of  time  by  one  state  excludes  the  claim  of  every  other 
in  the  same  manner  as.  by  the  law  of  nature  and  the  municipal  code 
of  every  civilized  nation,  a  similar  possession  by  an  individual  ex- 
cludes the  claim  of  every  other  person  to  the  article  of  property  in 
({uestion."     (Part  II..  c.  4,  sec.  164.) 

"•  There  are  also  moral  considerations  which  should  prevent  any 
disturV)ance  of  long  recognized  boundary  lines;  considerations  spring- 
ing from  regard  to  the  natural  sentiments  and  affections  which  grow 
up  for  places  on  which  persons  have  long  resided :  the  attachments 
to  country,  to  home  and  to  family,  on  which  is  based  all  that  is  dearest 
and  most  valuable  in  life," 

Virginia  r.  Tennessee  (18n:{).  148  V.  S.  m?,. 

April  ;J0.  1000,  a  decree  was  entered  ordering  tlie  appointment  of  ooinniis- 
sioners  to  ascertain,  re-trace,  re-mark,  and  reestahlisli  tiie  Itoundary 
line  between  the  States  of  Virginia  and  Tennessee,  as  established  by 
the  decree  in  Virginia  r.  Tennessee.  14S  T'.  S.  ."(0.3.  but  without 
authority  to  run  or  establish  any  other  or  new  line.  (Tennessee  v. 
Virginia  (19()0).  177  T'.  S.  ".01. )  >^ 

III.  liOiM) ARIES  OF  Tin:  I  \ITi:n  sTATHf?. 

1.  With  thk  Kkitisu  Po.s.sessioxs. 

s^  1^)8, 

The  hi'-tory  of  the  settlement  of  the  boundary  between  the  United 
States  and  the  Britisli  possessions  in  America  is  given  in  Moore's 
History  and  Digest  of  International  Arbitrations,  as  follows: 

The  St.  Croix  Kiver.  I.  c.  i.  1-4:5. 

Islands  in  the  Bay  of  Fimdy,  I.  c,  ii.  4o-(J3. 


750  NATIONAL   JURISDICTION  :    TERRITORIAL    LIMITS.  [§  158. 

The  Nortlieastorn  Bouiularv,  I.  c.  iii.  ()5-83;  c.  iv.  85-161. 

Boundary  through  the  River  St.  Lawrence,  and  Lakes  Ontario, 
Erie,  and  Huron,  I.  c.  v.  1()2-1T0;  VI.,  maps. 

Boundary  from  I^ake  Huron  to  the  most  northAvestern  point  of  the 
Lake  of  the  Woods,  I.  c.  vi.  171-195 ;  VI.,  maps. 

San  Juan  AVater  Boundary,  I.  c.  vii.  ll)()-285. 

As  to  the  Alaskan  boundary,  see  supra,  Ij  107,  pp.  4()()-475;  and  for 
the  final  award,  Oct.  20,  IDOH,  For.  Rel.  IDOH,  548. 

Though  the  ownership  of  the  islands  in  the  Bay  of  Fimdy  was 
determined  in  1817,"  no  step  Avas  taken  to  mark  the  water  boundary  in 
that  quarter  till  1891.  July  22,  1892,  a  treaty  was  concluded  between 
the  United  States  and  (Ireat  Britain,  by  Article  II.  of  which  the  higli 
contracting  ])arties  agreed  to  aj:)point  two  commissioners,  one  to  be 
named  by  each  i)arty  "  to  determine  u})on  a  method  of  more  accurately 
marking  the  l)()un<lary  line  between  the  two  countries  in  the  waters  of 
Passamaquoddy  Bay  in-  front  of  and  adjacent  to  Eastport,  in  the 
State  of  Maine,  and  to  place  buoys  or  fix  such  other  boundary  marks 
as  they  may  determine  to  be  necessary.""  President  Cleveland,  in  his 
annual  message  of  December  2.  1895.  said:  "The  commissioners  ap- 
])ointed  to  mark  the  international  boundary  in  Passamaquoddy  Bay 
according  to  the  description  of  the  treaty  of  Ghent  have  not  yet  fully 
agreed."' 

••  Having  carefully  considered  and  examined  .  .  .  the  subject,  I 
feel  no  hesitancy  in  stating  that,  by  the  terms  of  the  second  article  of 
the  treaty  of  9th  August,  1842,  betAveen  the  United  States  and  Her 
Britannic  Majesty,  Jona's  or  Squirrel  Island  is  a  British  possession, 
and  that  the  United  States  have  no  right  or  claim  to  jurisdiction  over 
the  same." 

Mr.  liuohannn,  Sec.  of  State,  to  Mr.  rakcnliani.  Brit,  inin.,  Dec.  20,  1846, 

MS.  Notes  to  Or.  Britain.  VII.  14!). 
As  to   tiie   floating:  lijrlit  at   Lime   Kiln   Crossinj;.   Detroit   Hiver.   see   Mi-. 
Freliiighuyscii.  Sec  of  State,  to  :Mr.   West.  Brit,  inin.,  Dec.  23,  1884, 
MS.  Notes  to  Gr.  Br.  XIX.  mu. 

In  the  President's  annual  message  of  December  2,  1895,  attention 
was  also-^alled  '"  to  the  unsatisfactory  delimitation  of  the  respective 
jurisdictions  of  the  United  States  and  the  Dominion  of  Canada  in  the 
Great  Lakes  at  the  ap})roaches  to  the  narrow  waters  that  connect 
them."  The  waters  in  question,  it  was  said,  were  frequented  by  fisher- 
men of  both  nationalities,  and  owing  to  the  uncertainty  and  ignorance 
as  to  the  true  boundary.  v(>xatious  (lis|)utes  and  injurious  seizures  of 
boats  and  nets  by  Canadian  cruisers  had  often  occurred,  while  any 
settlement  of  such  cases  by  an  accei)ted  standard  was  not  easily  to  be 
reached.  A  joint  commission  to  determine  the  line  in  those  quarters, 
on  a  i)ractical  basis,  by  measured  courses  following  range  marks  on 

o  Moore,  Int.  Arbitrations,  I.  02-03. 


§  158.]  DETERMINATION    OF    BOUNDARIES.  751 

shore  was  declared  to  be  "  a  necessity  for  which  iniinediate  provision 
should  be  made.'' 

While  the  line  from  the  river  St.  LaAvrence  to  the  most  northwest- 
ern point  of  the  Lake  of  the  Woods  was  settled  by  the  treaty.of  (ihent 
and  the  commissions  thereunder,  and  by  the  Webster- Ashl)urton 
treaty,  it  should  be  observed  that  there  has  been  no  joint  survey  of  the 
line  from  Pigeon  Kiver  to  the  Lake  of  the  Woods."  In  consequence 
of  this  defect,  questions  have  at  times  arisen  as  to  the  precise  extent 
of  jurisdiction. 

A  question  as  to  the  nationality  of  Coleman  and  Hunters  islands, 
in  Lac  La  Croix,  under  Article  II.  of  the  AVebster-Ashl)urton  treaty, 
gave  rise  to  a  correspondence  in  1895.  The  line  therein  described 
"  is  distinct  to  He  Royale  on  the  western  shore  of  Lake  Superior,  l)ut 
from  this  point  to  the  Lake  of  the  AVoods  the  description  is  not  .suffi- 
ciently minute  to  designate  the  exact  boundary  through  the  tortuous 
water  connnunication,  which  presents  a  chain  of  lakes  and  rivers 
filled  with  numerous  islands."  The  United  States  declared  that  not 
only  was  the  position  of  Coleman  Island  well  to  the  south  of  any 
natural  boundary  passing  through  the  waters  of  Lac  La  Croix  (other- 
wise called  Xequowquon).  but  that  by  continued  occupation  and  gov- 
ernmental survey  a  presumption  of  title  on  the  part  of  the  United 
States  had  been  established.  '*  not  to  be  set  aside  save  upon  the  most 
absolute  proof  to  the  contrary."  Reference  was  also  made  to  the  fact 
that,  although  no  chart  of  that  portion  of  the  boundary  had  ever 
been  nuule  by  the  two  Ciovernments  jointly,  the  British  commissioner, 
under  Article  VII.  of  the  treaty  of  Ghent,  had  traced  on  a  nuip.  filed 
Octol)er  23,  18'2(),  by  James  Ferguson.  American  principal  surveyor  to 
the  conmiission.  a  tentative  line  of  demarcation  through  the  Avaters 
and  islands  of  Lac  La  Croix,  and  that  Hunters  and  Coleman  islands 
ap])ear  designated  by  the  numbers  25  and  27  to  the  south  of  the  Brit- 
ish connnissioner's  proposed  line.  The  Lnited  States  therefore  pro- 
j)ose(l  that  the  two  (rovernments  endeavor  to  reach  an  exact  agree- 
ment for  the  i)recise  marking  of  the  boundary  in  question.  "  in  accord- 
ance with  the  true  intent  of  the  contracting  parties  expressed  in  the 
treaty  of  1842.  and  having  due  regard  to  the  prescriptive  rights  of 
undisi)uted  occupation  within  the  reasonable  limitsof  such  boundary."" 

()ctol)er   17.   1805.   Mr.   Olney,   Secretary   of   State,   wrote   to   Sir 
Julian  Pauncefote.  British  ambassador,  stating  that  representations 


"  II.  KoiK)rt  i:'>l().  ."4  Cong.  I  sess.  :  Moore.  Int.  Arbitrations.  I.  23(5. 

f>  Mr.  rill.  .\<tini.'  Sec.  of  State,  to  Lord  Oousih,  British  fhraffe.  .Tuly  3.  lSi).">.  For. 
Hel.  IS!).").  I.  T(f2.  In  Mr.  T'hl's  note  reference  is  made  to  a  series  of  maps  i»ub- 
lislied  l)y  tlie  ordnance  survey  office  at  Sontliampton  in  ISCS.  reproducing  the 
original  niaiis  filed  before  the  (((unnission  under  the  treaty  of  Obent.  When 
tbe.so  reproductions  were  made,  the  duplicate  originals  lu'longing  to  tbe  T'nited 
States  were  supposed  to  have  been  lost.  These  originals,  however,  have  since 
been  found  and  are  now  in  the  Department  of  State. 


752  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  lo8. 

had  l)ec'n  made  to  the  United  States  that  the  department  of  marine 
and  fisheries  of  Canada  was  taking  steps  to  secure  evidence  as  to  the 
channel  in  the  Lake  of  the  Woods  around  Oak  Ishind,  with  the 
intention  of  chiiming  that  ishind.  Mr.  Ohiey  referred  to  the  fact  that 
Article  II.  of  the  Webster- Ashburton  treaty  described  the  boundary 
in  the  Lake  of  the  Woods  as  running  from  "  that  point  in  Lac  la 
Pluie,  or  Kainy  Lake,  at  the  Chaudiere  Falls,  from  which  the  conmiis- 
.sioners  traced  the  line  to  the  most  northwestern  point  of  the  Lake  of 
AVoods."  lie  stated  that  on  the  original  signed  map  prepared  by  the 
commissioner  under  Article  VIL  of  the  treaty  of  Ghent,  Oak  Island, 
which  was  marked  No.  1,  was  designated  as  belonging  to  the  United 
States;  that  its  American  character  and  occupancy  had  not  admitted 
of  any  doubt,  and  that  the  reported  acti(m  of  the  Canadian  authori- 
ties, in  extending  their  surveys  to  the  westward  of  the  island  was 
therefore  an  intrusion  upon  the  territory  of  the  United  States  which 
had  disquieted  the  occupants  and  was  likely  to  give  rise  to  conflicts.'* 

The  Canadian  government  replied  that  the  information  which  had 
reached  the  Department  of  State  at  Washington  as  to  the  reported 
action  of  the  department  of  marine  and  fisheries  was  entirely  without 
foundation,  no  survey  of  the  kind  having  been  undertaken,  but  that 
the  rei)ort  might  have  resulted  from  the  issuance  of  fishing  licenses  in 
the  Lake  of  the  AVoods.  It  had  been  claimed  by  certain  parties,  and 
supported  by  the  opinion  of  a  number  of  old  settlers,  that  the  bound- 
ary line  followetl  the  steamboat  channel,  which  was  south  of  Oak 
Island,  and  inquiries  were  at  the  same  time  made  as  to  the  identity 
of  the  island  laid  down  as  No.  1  on  the  boundary  map  wdth  that 
connnonly  known  as  Oak  Island.  "  Beyond  the  authoritative  estab- 
lishment of  the  boundary  as  laid  down  in  the  conventions  cited  by 
Mr.  Secretary  Olney,  and  of  the  identity  of  the  island  designated  as 
No.  1,  the  department  of  marine  and  fisheries  has.''  concluded  the 
Canadian  reply.  "  had  no  concern  whatever :  neither  has  it  in  any 
way  suggested  an  expansion  of  territory  or  jurisdiction  beyond  that 
conventionally  conferred  upon  the  Crown."  '' 

By  the  act  of  Congress  of  March  19,  1872,  the  President  was  au- 
thorized to  cooperate  with  the  Government  of  Great  Britain  in  the 
appointment  of  a  joint  commission  to  survey  and  mark  the  boundary 
between  the  United  States  and  the  British  possessions  from  the  Lake 
of  the  Woods  to  the  sunnnit  of  the  Rocky  Mountains.  The  labors  of 
the  commission  were  concluded  in  187(5.  The  final  records  and  maps 
were  signed  in  London  on  the  29th  of  May  in  that  year,  and  a  pro- 
tocol was  drawn  up  and  signed  setting  forth  the  commission's  final 
proceedings.'' 


«  For.  Rel.  ISO.").  I.  724. 

6  For.  Kol.  ISO.").  L  72.>-72r). 

c  Moore.  Int.  Arbitrations,  I.  235-230;  S.  Ex.  Doc.  41,  44  Cong.  2  sess. 


§  159.]  DETERMINATION    OF    BOUNDARI?:S.  753 

The  line  from  the  Rocky  Mountains  to  the  (lulf  of  (jeorgia.  under 
the  treaty  of  184(),  was  surveyed  and  marked  by  commissioners  prior 
to  1870.  On  the  -i^th  of  P'ebruary  in  that  year  Mr.  Fish.  Secretary 
of  State,  and  Mr.  Thornton,  British  minister,  signed  ,a  protocol  de- 
claring that  seven  maps,  which  were  duly  certified  and  authenticated 
under  the  signatures  of  the  American  and  British  commissioners  and 
on  which  the  boundary  in  question  was  traced,  were  approved,  agreed 
to,  and  adopted  by  both  Governments."  When  the  survey  was  made, 
however,  many  places  along  the  frontier  were  uninhabited  and  vir- 
tually inaccessible  which  have  since  attracted  a  considerable  number 
of  settlers,  and  proposals  have  been  discussed  for  the  restoration 
of  the  original  monuments,  where  these  were  defective,  and  for  the 
erection  of  supplementary  ones.'^ 

"Provision  slicjuld  be  made  for  a  joint  denian-ition  of  tlie  frontier 'line 
l)et\vetMi  Canada  and  tlie  t'nitod  States,  w  iierever  required  by  tbe 
increasing  border  settlements,  and  especially  for  the  exact  location 
of  the  water  boundary  in  the  straits  and  rivers."  (President  Har- 
rison, Dec.  0.  1S01.  annual  message.) 

For  information  as  to  the  toitography  of  the  (oin)try  along  the  border  and 
the  extent  to  which  recognizal>le  boundary  marks  exist,  see  Bulletin 
No.  17-1  of  the  I'.  S.  Geological  Survey. 

"A  more  complete  marking  of  j^arts  of  the  l)oundary  "  between  the 
United  States  and  the  British  possessions  was  one  of  the  subjects 
referred  to  the  Joint  High  Commission  of  1898-99,  whose  labors 
were  suspended  in  consequence  of  ditlerences  as  to  the  Alaskan 
boundary.^ 

2.  With  Mexico. 

(1)   land  links. 
§  159. 

[See   supra,    H    10:!.    lO.",.    100.] 

By  the  treaty  of  limits  of  January  1'2,  1828,  the  United  States  and 
Mexico  engaged  each  to  appoint  a  commissioner  and  a  surveyor  to 
run  the  line,  and  they  also  agreed  to  accept  the  result  reached  by  them. 


o  Treaties  and  Conventions  of  the  I'nited  States,  177(1-1887,  p.  440. 

6  Mr.  Hay,  Sec.  of  State,  to  Sec.  of  Treasury,  .Tan.  28,  IWl,  'i.lo  MS.  I>om.  Let. 
4,31,  enclosing  copy  of  a  note  from  the  TiJMtish  ambassador  of  .Tan.  14,  1!K)1  ;  Mr. 
Hay,  Sec.  of  State,  to  Mr.  Foster,  M.  C..  .Tan.  21>,  1901,  2.">o  MS.  Dom.  Let.  441; 
Mr.  Hay,  Sec  of  State,  to  Sec.  of  Interior,  .Tan.  :?0,  1001.  2.">0  MS.  Dom.  Let.  4«3. 

(^  President  Mclvinley,  annual  messiige.  I>ec.  .">,  1800.  See  re^Mirt  of  Senator 
Clark,  of  Wyoming,  from  the  Com.  on  For.  Hel.,  Feb.  23,  lOfX),  on  a  joint  reso- 
lution (S.  li.  71)  authorizing  the  President  to  invite  Creat  Britain  to  join  In 
creating  an  international  connnission  to  examine  and  report  on  the  diversion  of 
the  waters  that  form  the  boundary  between  the  two  countries.  (S.  Rep.  461, 
50  Cong.  1  sess. ) 

H.  Doc.  551 i8 


754  NATIONAL  jurisdiction:  territorial  limits.       [§159. 

There  was  no  provision  for  the  decision  of  questions  of  difference,  if 
any.  between  the  persons  so  appointed.  A  similar  engagement  was 
incorporated  in  the  Sth  article  of  the  treaty  of  Guadalupe  Hidalgo 
of  Feb.  '2,  184:8,  and  in  the  first  article  of  the  treaty  of  December 
30,  1853,  both  of  which  made  cessions  of  territory  to  the  United 
States  and  established  a  new  boundary.  Prior  to  the  conclusion  of 
the  latter  treaty,  a  question  arose  as  to  a  certain  tract  of  territory 
claimed  by  the  United  States  as  part  of  New  Mexico,  and  as  having 
passed  to  the  United  States  under  the  treaty  of  1848,  while  Mexico 
alleged  that  it  formerly  belonged  to  the  State  of  Chihuahua. 

"  Where  a  dispute  as  to  territorial  limits  arises  between  two  nations, 
the  ordinary  course  is  to  leave  the  territory  claimed  by  them,  respec- 
tively, in  the  same  condition  (or  as  nearly  so  as  possible),  in  which 
it  was  when  the  difficulty  first  occurred  until  an  amicable  arrange- 
ment can  be  made  in  regard  to  conflicting  pretensions  to  it.  It  has 
not  been  the  intention  of  the  United  States  to  deviate  from  this  course, 
nor  has  any  notice  been  given  by  Mexico  that  she  projjosed  to  assume 
jurisdiction  over  it,  or  change  the  possession  as  it  was  held  at  the  con- 
clusion of  the  treaty  of  peace  and  limits  1 1848 1  between  the  two 
liepublics. 

"Governor  Lane  [of  New  Mexico]  is  justified  in  claiming  the  dis- 
i:)uted  territory  as  a  i)art  of  New  JMexico  and  in  denying  that  the  acts 
of  the  boundary  conunission  had  in  any  manner  effected  a  transfer 
of  tJiat  territory  from  New  Mexico  to  Chihuahua,  but  his  proceeding 
to  enter  the  territory  and  hold  it  by  force  of  arms  is  not  approved 
and  will  not  be,  unless  it  shall  appear  that  the  authorities  of  Chihua- 
hua had  changed  or  were  attempting  to  change  the  state  of  things  in 
the  (lis])uted  territory  from  the  condition  in  which  they  w^ere  before 
the  action  of  tlie  boundary  conunission  on  that  part  of  the  line.  The 
successor  to  (iovernor  Lane  will  })roceed  without  delay  to  New  ISIexico 
Avith  instructions  to  pursue  a  course  fair  towards  Mexico  and  usual 
in  such  cases. 

"  You  are  instructed  to  assure  the  (Jovernment  of  Mexico  of  the 
willingness  of  the  (Jovernment  of  the  United  States  to  have  the  terri- 
tory remain  as  it  was  when  the  treaty  of  (luadalupe  Hidalgo  Avas 
concluded,  without  j^rejudice  to  the  rights  of  either  party,  until  the 
line  shall  be  definitely  settled  by  the  boundary  commission  or  by 
negotiation." 

.Mr.  Miircy.  S(m-.  of  Stale,  to  .Mr.  Coiiklinf,',  min.  to  Mexic-o,  May  18,  IS.").*?, 
.MW.  Inst.  :Mex.  XVI.  .•'.Ttl. 

In  rei)ly  to  a  request  for  ''  certified  coi)ies  of  the  data,  surveys,  and 
reports  relating  to  tlie  Emory-Salazar  line  between  the  United  States 
luid  Mexico,  to  settle  a  controversv  as  to  the  boundarv  of  certain  lands 


§  159.]  DETERMINATION    OF    BOUNDARIES.  755 

lying  ill  P21  Paso  County,  Texas,"  the  Department  of  State  said: 
''  This  Department  is  the  custodian  of  the  maps  of  the  survey  in 
question,  Avhich  are  accompanied  by  the  original  fiekl  notes.  Neither 
the  maps  nor  the  fiekl  notes  have  ever  been  printed."'  It  was  added 
that  every  facility  Avoiild  be  afforded  for  their  examination  by  a 
properly  accredited  expert. 

Mr.  Adee.  Ai-tinji  8ee.  of  StaU\  to  Mr.  Smith.  Mv^.  IS.  ISOt).  2;!0  MS.  Doiii. 

Let.  387. 
For  letters  and  i)apers  relatiiijj  to  the  houiidary  with  Mexico,  see  Ex.  Doc. 

G,  33  Cong,  special  sess. 
For  the  rei>ort  of  Maj.  W.  II.  Emory.  U.  S.  commissioner,  on  the  survey  of 

the   houndary,    including   a   general    description    of   the   country   and 

maps  and  illustrations,  see  II.  Ex.  Doc.  135,  34  Cong.  1  sess.  Vol.  XIV. 

in  3  parts. 

By  a  convention  of  July  29,  1882,  the  United  States  and  Mexico 
agreed  to  create  an  international  boundary  commission,  consisting 
of  a  chief  engineer  and  associates  appointed  by  each  party,  to  relocate 
the  ])oundary  in  places  where  the  monuments  of  })rior  surveys  had 
been  destroyed  or  displaced.  This  convention  having  lapsed  by 
reason  of  delays  in  the  appointment  of  commissioners,  President 
Cleveland,  in  his  annual  message  of  December  8,  1888,  said :  "  The 
precise  relocation  of  our  boundary  line  [with  Mexico]  is  needful,  and 
adequate  appropriation  is  now  recommended."  The  convention  of 
1882  was  revived  by  a  convention  of  PVbruary  18,  1889,  by  which  the 
time  for  the  execution  of  the  work  was  fixed  at  five  years  from  the 
date  of  the  exchange  of  the  ratifications  of  the  new  convention.  Con- 
tinuances were  subsequently  eft'ected  till  October  11,  1894,  and  October 
11,  189(j. 

"  The  commissioners  on  the  part  of  the  United  States  who  were 

ap])ointed  pursuant  to  the  convention  of  July  29,  1882,  as  subsequently 

revived  and  continued  to  October  11,  1890,  in  regard  to  the  survey 

and  re-marking  of  the  boundary  line  between  the  United  States  and 

Mexico,  have  completed  their  work  and  made  their  final  report.     An 

early  opportunity  will  l)e  taken  to  lay  the  matter  before  Congress. 

to  the  end  that  this  valuable  report,  with  its  accompanying  maps  and 

views,  may  be  printed." 
« 

Report  of  Mr.  Olney,  Sec.  of  State,  to  the  President,  Dec.  7,  1806,  For. 
Rel.  ]81M>,  Ixviii.  See  also  President  Cleveland,  annual  message,  Dec.  2. 
1895.     The  rei)ort,  maps,  and  views  were  suhsequently  printed. 

In  deference  to  the  exi)ressed  wishes  of  the  .Mexican  Ciovermnent,  the 
United  States  authorities  in  Arizona  were  directed  in  1SS7  to  suspend 
further  action  in  the  matter  of  the  survey  of  certain  realty,  and  all 
proceedings  in  connection  therewith,  it  heing  .illeged  that  the  land 
lay  in  Mexico,  pending  the  definite  reloc.-ition  of  the  houndary  line 
pursuant  to  the  treaty  of  .luly  29,  1882.     (For.  Kel.  1887,  873-881.) 


756  NATIONAL   JURISDICTION  :    TERRITORIAL   LIMITS.  [§159. 

See  a  discussion  as  to  tlio  disputed  piece  of  land  called  Banco  Cuauhtemoc 
or  Banco  Vela.  The  matter  was  submitted  to  the  International 
Boundary  Conniiission.      (For.  Rel.  18!)4.  :5ni-.'{!)4.) 

For  corresiK>ndence  in  relation  to  the  proceedings  of  the  commission,  see 
For.  Kel.  1894,  411,  415.    ' 

"  The  International  Boundary  Commission  of  Mexico  and  the 
United  States,  created  by  the  convention  of  July  29,  1882,  to  replace 
the  monuments  marking;  the  dividing  line  from  Paso  del  Norte  to  the 
Pacific  Ocean,  noticed  in  the  execution  of  its  labors  considerable  dif- 
ferences between  the  dividing;  lin.e  agreed  upon  in  the  treaty  of 
December  30,  1853,  and  that  laid  off  on  the  spot  by  the  respective 
commissions  which  were  at  work  up  to  the  year  185(5,  especially  in  the 
measurement  of  100  miles  along  parallel  31°  47'  north  latitude,  from 
the  river  Bravo  west,  and  thence  south  until  striking  parallel  31° 
20',  and  following  that  ])arallel  to  the  west  to  the  meridian  111°  Avest 
of  Greenwich.  The  progress  of  science,  the  j^erfection  of  scientific 
instruments,  and  the  use  of  the  telegraph  enabled  this  connnission  to 
discover  the  mistakes  of  the  first. 

"As  it  is  proper  that  the  demarcation  of  the  dividing  line  on  the 
ground  should  be  in  conformity  with  tlie  })r()visions  of  the  treaty  in 
(piestion,  the  Mexican  (lovernment  thinks  that  the  line  should  be  rec- 
tified so  as  to  agree  with  the  treaty  Avhich  fixed  it,  and  to  prevent 
either  of  the  contracting  countries  being  in  possession,  although  by 
mistake,  of  portions  of  territory  which  it  was  not  the  intention  of  the 
treaty  to  grant  it. 

"  To  this  end  the  Mexican  (iovernment  has  instructed  me  to  propose 
to  the  United  States  (rovernment  the  conclusion  of  a  new  convention 
to  rectify  the  demarcation  of  the  dividing  line  in  accordance  with  the 
treaty  of  1853,  between  the  river  Bravo  (monument  No.  1)  and  the 
Colorado  Kiver  (monument  No.  205).  or  throughout  its  whole  extent, 
if  the  United  States  Government  should  prefer  to  have  the  rectifica- 
tion made  along  the  whole  line,  although  the  ditferences  found  in 
tlie  dividing  line  between  the  Californias  are  insignificant. 

'•  If  the  United  States  (lovermnent  considers  these  observations  well 
founded,  and  if  you  desire  it.  I  will  draw  uj)  a  draft  of  a  convention 
for  the  exact  demarcation  of  the  dividing  line  throughout  its  whole 
extent,  or  in  the  part  mentioned."  » 

Mr.  Romero.  Mcx.  min.,  to  Mr.  Sherman.  Sec.  of  State.  Aug.  0.  1807.  For. 
Rel.  1S!>7.  .Sl>8.  The  errors  discovered  in  the  survey  of  18.16  were  as 
follows  : 

1.  A  mistake  in  the  measurement  of  the  section  aloiifi  jiarallel  ^'[°  47'.  west 
from  the  Rio  (iraiide.  This  distance  was  ftmnd  to  he  1.')0.10.''..4  nx'ters 
instead  of  KJO.'.t: '>.''..()  meters  (l(Mi  miles),  as  jn-escrihed  by  the  treaty. 
As  a  result  of  this  error  the  meridian  section  connecting  the  parallel 
of  'M°  47'  with  the  parallel  of  l\\°  2(>'  was  located  approximately  one 
mile  (1.739.0  meters)   east  of  its  proper  position,  thus  giving  to  the 


§  150.]  DETERMINATION    OF    BOUNDARIES.  757 

Unitetl  States  a  strip  of  laiitl  about  ."'.l  niilt's  Ioiik  from  north  to  soutli 
by  about  a  mile  in  widtb. 

2.  The  longitude  of  the  monument  marking  tlie  western  terminus  of  the 
section  along  )»arallel  :i\°  20'.\vhieb  should  have  been  at  the  111th  meri- 
dian, was  found  to  be  in  longitude  111°  4'  84.45".  or  alxmt  4A  miles 
west  of  its  proper  position.  This  error  also  was  favorable  to  the 
United  States,  giving  it  a  nearly  triangular  area  of  about  2'JO  square 
miles. 

The  sum  of  both  errors  was  tlierefore  about  ?.20  sciuare  miles. 

As  a  whole  the  work  of  the  connnission  of  \H~>'-i-~>i>  was  found  to  be  excel- 
lent. Indeed,  the  final  difference  in  longitude  between  the  Rio 
Grande  and  the  Pacific  coast  as  determined  by  that  commission  dif- 
fered from  that  determined  by  the  later  one,  b.v  the  more  recent  and 
more  precise  methods,  by  only  about  l.(j  miles. 

"As  to  the  question  of  a  new  convention  for  the  rectification  of  the 
l)oundarv  in  accordance  with  the  treaty  of  December,  ISoS,  I  may  say 
in  all  candor,  in  which  the  interests  of  both  Governments  are  to  be 
considered  in  forming  a  conclusion,  that  it  is  one  of  propriety.  .  .  . 

'•Article  I.  of  the  treaty  of  December,  IS.j^,  states: 

'•'That  line  shall  be  alone  established  upon  which  tlie  commission 
may  fix,  their  consent  in  this  particular  being  considered  decisive  and 
an  integral  part  of  this  treat}',  without  necessity  of  ulterior  ratifica- 
tion or  ajjproval,  and  without  room  for  interpretation  of  any  kind.  i.\v 
either  of  the  parties  contracting. 

•• '  The  dividing  line  thus  established  shall,  in  all  time,  be  faithfully 
respected  by  the  two  Governments  without  any  variation  therein, 
unless  of  the  express  and  free  consent  of  the  two,  given  in  conformity 
to  the  principles  of  the  law  of  nations,  and  in  accordance  Avith  the 
constitution  of  each,  country,  respectively.' 

"•  Great  stress  seems  to  have  been  laid  upon  the  importance  of  a  final 
and  permanent  settlement  of  the  boundaiy  wliich  shall  in  all  time  be 
faithfully  respected  by  the  two  (lovernments.  .  .  . 

'•  The  delimitation  by  that  connnission  was  made  an  explicit  part  of 
the  treaty,  and  it  would  seem  that  the  line  thus  established  should  not 
be  changed  except  for  very  weighty  and  serious  reasons.  It  is  ques- 
tionable if  the  transfer  of  a  comparatively  few  s(|uare  miles  of  land, 
then  practically  valueless,  and  now  of  but  suiall  intrinsic  worth,  can 
be  considered  a  sufficient  reason  to  disturb  the  satisfactorv  coudition 
that  exists  on  the  fi'ontier  and  give  occasion  for  all  sorts  of  private 
claims  for  danuiges  on  the  part  of  the  owners  of  adjaceut  lands.  .  .  . 

'•  It  would  seem,  in  the  Department's  judgment,  that  all  the  pur- 
poses of  the  several  treaties  have  Ix'en  subserved;  a  boundary  was 
established  and  marked,  in  compliance  with  the  treaty  of  1858.  which 
has  been  known  and  acce{)ted  i)V  both  (lOvernments  as  well  as  the 
people  living  along  the  border.  It  is  true  this  line  may  perhaps  have 
been  inadequately  marked  at  first,  and  several  of  the  marks  may  have 


758  NATIONAL    JURISDICTION:    TERRITORIAL   LIMITS.  [§159. 

disappoared,  but  its  approximate  location  was  recognized,  and  pri- 
vate rights  were  acquired  in  accordance  with  its  location.  In  com- 
pliance Avith  the  treaties  of  1882  and  1889  this  boundary  was  reestab- 
lished and  carefully  marked,  and,  as  such,  is  apparently  satisfactory 
to  the  peo])le  in  its  vicinity.  The  monuments  as  now  located  are 
permanent  and  intervisible;  no  dispute  can  arise  in  regard  to  the 
boundi.r-y,  which  is  practically  the  same  that  has  been  known  and 
recognized  during  the  preceding  forty  years.  It  would  seem,  there- 
fore, a  useless  i-etinement  to  change  it  now.  The  matter  at  issue,  so 
far  as  the  two  (irovernments  are  concerned,  it  is  respectfully  sub- 
mitted, is  but  a  trifle,  while  to  the  individuals  to  be  affected  the 
results  of  a  change  might  be  very  serious. 

"  While  the  Avork  ])roposed,  should  it  ultimately  be  determined  to 
make  the  rectification  referred  to,  would  not  be  specially  difficult  and 
would  involve  no  very  intricate  scientific  problems,  yet  the  more 
serious  aiul  ex])ensive  part  of  it  would  doubtless  be  the  removal  and 
reerection  of  all  monuments  along  the  meridian  section,  14  in  num- 
ber, thive  being  of  stone;  also  those  on  the  azimuth  line  from  the  one 
hundred  and  eleventh  meridian  to  the  Colorado  River,  80  in  number, 
10  being  of  stone.  .  .  . 

'■  In  this  connection,  it  is  well  to  bear  in  mind  that  all  surveys,  even 
when  carried  out  with  the  greatest  ])recision,  are  necessarily  approxi- 
mate. There  is  therefore  no  reason  to  believe  that  the  survey  of  the 
commission  of  1891-1895  Avas  infallible,  or  that  should  the  line  be  now 
changed  to  confoi'ni  to  its  results  a  future  generation  Avould  ])e  equally 
justified  in  changing  it  again  on  the  ])lea  that  a  further  advance  in 
scientific  methods  had  discovered  errors  in  the  present  work. 

"'  I  submit  these  views  for  tlie  information  of  the  Mexican  Govern- 
ment. In  the  President's  judgment  no  sufficient  reasons  have  been 
adduced  why  either  (lovernment  should  be  put  to  the  expense  of 
endeavoring  to  rectify  a  line,  that  future  generations  may  be  able  to 
say  is  not  the  true  one.  after  it  has  been  so  thoroughly  and  compe- 
tently surveyed,  in  the  light  of  all  modern  and  scientific  methods,  by 
the  joint  comniissioii  organized  j^ursuant  to  the  convention  of  July 
29,  1882.  The  results  of  that  commission  should  stand,  since  the  dif- 
ferences indicated  are  of  practically  no  intrinsic  value  so  far  as  the 
few  sijuare  miles  of  land  are  concerned,  and  the  boundai'v  line  so 
marked  is  practically  the  same  that  had  been  known  and  recognized 
during  the  preceding  forty  yeai's." 

Mr.   Sherman.   Sec.  of  State,  to  Mr.   Koinero,  Mex.   min..   Sept.  22.   1S97, 

For.  Uel.  1S97.  ;iO<». 
Mr.  Koinero,   Sept.  28,   ISOT.  acknowledged  the  receipt  of  the  foregoing 

note,  and  stated  that  he  would  send  a  eoi).v  of  it  to  his  Government. 

(For.  Rel.  1897,  402.) 
See.  also,  Mr.  Cridler.  Third  Assist.  Sec.  of  State,  to  Mr.  Barlow,  Sept.  2.3, 

1897.  221  MS.  Dom.  Let.  I'M. 


§  160.]  DETERMINATION    OF    BOUNDARIES.  759 

(2)     WATER    LINKS. 

j^   K^O. 

In  1884  a  discussion  took  j^lace  between  the  United  States  and 
^Mexico  in  rejrard  to  the  ownership  of  two  ishmds,  called  bv  Mexico 
Aforteritos  and  Sabinitos.  in  the  Kio  Grande.  ^lexico  claimed  the 
islands  as  Xos.  1-J  and  i:i  in  the  printed  report  of  Maj.  William  H. 
Kmorv,  chief  of  the  United  States  l)Oundarv  connnission,  under  the 
treaty  of  Guadalupe  Hidalgo.  The  United  States  found,  on  exami- 
nation of  the  original  sur\'eys,  that  the  printed  report  was.  by  reason 
of  a  typographical  mistake,  erroneous;  that  the  island  of  Sabinitos 
was  numbered  14  in  the  original  surveys  and  assigned  to  Mexico: 
that  island  No.  12  was  called  (ireen  Key  Island  and  also  was  as- 
signed to  Mexico;  but  that  island  Xo.  18  comprised  twin  islands 
called  the  Beaver  Islands,  the  larger  of  which  was  known  by  the 
Mexicans  as  Morteritos,  and  that  these  islands  were  assigned  by  the 
commissioners  to  the  United  States.  The  United  States  therefore 
declared  that  the  record  required  that  it  should  "  regard  its  terri- 
torial jurisdiction  over  the  island  of  Morteritos,  otherwise  Beaver 
Island  (Xo.  13),  as  established  by  the  boundary  commission  under 
the  treaty  of  Guadalupe  Hidalgo,  and  consequently  that  the  Mexican 
pretension  to  that  island  and  to  accretions  thereto  from  the  left  or 
United  States  bank  of  the  Rio  (irande  shall  be  denied.'" 

The  Mexican  (iovernment,  subsequently  admitting  the  confusion 
in  names,  stated  that  it  had  "  decided  not  to  insist  upon  the  rights  of 
Mexico  over  the  island  of  Morteritos  in  the  supposition  that  it  is 
island  Xo.  13.  or  Beaver  Island,"  and  added : 

••  The  bases  of  this  decision  rest  upon  the  stipulations  of  the  fifth 
article  of  the  treaty  of  (iuadalupe  Hidalgo  of  February  2,  1848,  that 
the  dividing  line  between  our  two  countries  from  the  (Julf  of  Mexico 
to  Paso  del  Xorte  should  be  the  center  of  the  Kio  Grande,  and  that 
where  this  river  had  more  than  one  channel  the  line  should  follow 
the  deepest.  This  circumstance  being  borne  in  mind  by  the  boundary 
connnission  in  laying  down  the  line,  the  channel  which  lay  to  the 
south  of  island  Xo.  13.  or  Morteritos,  or  Beaver  Island,  left  this 
island  upon  the  side  of  the  Ignited  States. 

"As  this  is  the  basis  presented  by  the  Government  of  the  United 
States  to  defend  its  rights  to  that  island,  it  thus  recognizes  that  the 
limits  between  the  two  Repul)lics  are  those  fixed  by  the  treaty  of 
(iuadalupe  Hidalgo,  such  as  were  laid  down  by  the  mixed  connnis- 
sion, without  having  been  altered  by  the  changes  occasioned  by  the 
current  of  the  river,  whether  in  its  margins  or  the  deepest  of  its 
channels." 


760  NATION ATi   JURISDICTION  :    TERRITORIAL   LIMITS.  [§  160. 

Mr.  Uoiiioro.  Mox.  iiiiii.,  to  Mr.  Freliufjlui.vsen.  Sec.  of  State,  May  24, 
June  2.  and  June  12.  18S4:  Mr.  Frelinsluiysen,  See.  of  State,  to  Mr. 
Romero,  Me.v.  uiin..  July  10.  1SS4  ;  Mr.  Frelinghuysen.  See.  of  State, 
to  Mr.  Morjrau.  niin.  to  Mex..  July  11.  1884;  Mr.  Morgan,  uiin.  to 
Mex..  to  Mr.  Freiingluiysen,  See.  of  State.  Aug.  12,  1884;  Mr.  Romero. 
Mex.  mln.,  to  Mr.  Frelinghuysen.  See.  of  State,  Oct.  9,  1884;  For.  Rel. 
18.S4.  .■{8<>-;:582.  :«):},  :\t.'>.  .ST.").  :vm. 

"  It  has  been  held  in  this  Department  tiiat  when,  through  the  ehanging 
of  the  channel  of  the  Rio  (irande.  the  distance  of  an  island  in  the 
river  from  the  respective  shores  has  been  changed,  the  line  adjusted 
by  the  commissioners  under  the  treaty  [of  (iuadalupe-Hidalgo]  is 
nevertheless  to  remain  as  originally  drawn."  (Mr.  Bayard,  Sec.  of 
State,  to  Mr.  Bowen.  June  12.  188G.  IGO  ^IS.  Dom.  Let.  162.) 

"  AVhereas,  in  virtue  of  the  Vtli  article  of  the  Treaty  of  Guadalupe 
Hidalgo  between  the  United  States  of  America  and  the  United  States 
of  Mexico,  concluded  February  2,  1848,  and  of  the  first  Article  of  that 
of  December  30,  1858,  certain  parts  of  the  dividing  line  between  the 
two  countries  follow  the  middle  of  the  channel  of  the  Rio  Grande  and 
the  Rio  Colorado,  to  avoid  difficulties  which  may  arise  through  the 
changes  of  channel  to  which  those  rivers  are  subject  through  the 
operation  of  natural  forces,  the  Government  of  the  United  States  of 
America  and  the  (lovernment  of  the  ITnited  States  of  Mexico  have 
resolved  to  conclude  a  convention  which  shall  lay  down  rules  for  the 
determination  of  such  questions.  ... 

"Article  I.  The  dividing  line  shall  forever  be  that  described  in 
the  aforesaid  Treaty  and  follow  the  center  of  the  normal  channel  of 
the  rivers  named,  notwithstanding  any  alteration  in  the  banks  or  in 
the  course  of  those  rivers,  provided  that  such  alterations  be  effected 
by  natural  causes  through  the  slow  and  gradual  erosion  and  deposit 
of  alluvium  and  not  by  the  abandonment  of  an  existing  river  bed 
and  the  opening  of  a  new  one. 

"Article  II.  Any  other  change,  wrought  by  the  force  of  the  cur- 
rent, whether  by  the  cutting  of  a  new  bed,  or  when  there  is  more  than 
one  channel  by  the  deepening  of  another  channel  than  that  which 
marked  the  boundary  at  the  time  of  the  survey  made  under  the  afore- 
said Treaty,  shall  produce  no  change  in  the  dividing  line  as  fixed  by 
the  surveys  of  the  International  Boundary  Conunissions  in  1852,  but 
the  line  then  fixed  shall  continue  to  follow  the  middle  of  the  original 
channel  bed,  even  though  this  should  become  wholly  dry  or  be  ob- 
structed by  deposits. 

"Article  III.  No  artificial  change  in  the  navigable  course  of  the 
river,  by  building  jetties,  piers,  or  obstructions  which  may  tend  to 
deflect  the  current  or  produce  deposits  of  alluvium,  or  by  dredging 
to  deepen  another  than  the  original  channel  under  the  Treaty  when 
there  is  more  than  one  channel,  or  by  cutting  waterways  to  shorten 
the  navigable  distance,  shall  be  permitted  to  aft'ect  or  alter  the  divid- 


§  160.]  DETERMINATION    OF    BOUNDARIES.  761 

ing  line  as  determined  bv  the  aforesaid  Commissions  in  1852  or  as 
determined  bv  Article  I.  hereof  and  under  the  reservation  therein 
contained ;  but  the  ])rotection  of  the  banks  on  either  side  from  erosion 
by  revetments  of  stone  or  other  material  not  unduly  projecting  into 
the  current  of  the  river  shall  not  be  deemed  an  artificial  change. 

''Article  IV.  If  any  international  bridge  have  been  or  shall  be 
built  across  either  of  the  rivers  named,  the  point  on  such  bridge 
exactly  over  the  middle  of  the  main  channel  as  herein  determined 
shall  be  marked  by  a  suitable  monument,  which  shall  denote  the 
dividing  line  for  all  the  pur})oses  of  such  bridge,  notwithstanding  any 
change  in  the  channel  which  may  thereafter  supervene.  But  any 
rights  other  than  in  the  bridge  itself  and  in  the  ground  on  which  it 
is  built  shall  in  event  of  any  such  subsequent  change  be  determined 
in  accordance  with  the  general  provisions  of  this  convention. 

''Article  V.  liights  of  })roperty  in  respect  of  lands  which  may 
have  become  separated  through  the  creation  of  new  channels  as 
defined  in  Article  II.  hereof,  shall  not  be  affected  thereby,  but  such 
lands  shall  continue  to  be  under  the  jurisdiction  of  the  country  to 
which  they  previously  belonged. 

"  In  no  case,  however,  shall  this  retained  jurisdictional  right  affect 
or  control  the  right  of  navigation  common  to  the  two  countries  under 
the  stipulations  of  Article  VII,  of  the  aforesaid  Treaty  of  Guadalupe 
Hidalgo;  and  such  connnon  right  shall  continue  without  prejudice 
Ihrough  the  actually  navigable  main  channels  of  the  said  rivers,  from 
the  mouth  of  the  Rio  Grande  to  the  point  where  the  Rio  Colorado 
ceases  to  be  the  international  Vjoundary.  even  though  any  part  of  the 
channel  of  said  rivers,  through  the  changes  herein  provided  against, 
may  be  comprised  within  the  territory  of  one  of  the  two  nations.  .  .  . 
Done  at  the  city  of  Washington.  .  .  .  this  twelfth  day  of  Novem- 
ber, A.  I).  1884.' 

"  Fredk.  T.  Frelixoiii'ysen.     [seal.] 
"  [seal.]     M  Romero." 

^Miile  the  foregoing  convention  settled  general  principles,  questions 
inevitably  arose  as  to  their  application  in  particular  cases. 

In  1888  representations  were  made  to  the  Mexican  Government,  at 
the  instance  of  the  city  of  El  Paso,  Tex.,  in  relation  to  certain  wing- 
dams  which  the  Mexican  authorities  were  constructing  at  Ciudad 
Juarez,  on  the  opposite  shore  of  the  Rio  Grande,  for  the  ostensible 
purpose  of  protecting  the  shore  from  erosion.  Engineers  were  sent 
liv  the  two  (Jovernments  to  consider  the  situation  and  confer  upon  it. 
After  the  close  of  their  conferences, the  United  States, on  receiving  the 
report  of  its  engineers,  suggested  that.  "  in  view  of  the  apparent  sub- 
jection of  the  (juestions  presented  at  Ciudad  Juarez  to  the  stipulations 
of  the  rlver-boundarv  convention  of  November  12,  1881,  and  of  the 


7G2  NATIONAL   JURISDICTTON  :    TERRTTORTAL    LIMITS.  [§  160. 

iinniediato  prosjioct  of  a  convenient  forum  for  their  adjustment 
heintr  aH'orcTed  as  the  result  of  the  negotiation  "  then  about  to  be  con- 
chided  "  for  an  international  boundary  connnission,"  the  work  should 
he  suspended,  unless  the  complaint  should  be  removed  by  a  modifica- 
tion of  the  plans. 

Mr.  Rnyaril.  Soo.  of  State,  to  Mr.  Coiinory,  cliarfu'  at  Mexico,  No.  2.^8,  Feb. 
i:{.  ISKS.  For.  Uol.  ISSS,  II.  1110  et  neq.,  and  1241  ;  Mr.  Uoiuero,  Mex. 
inin.  to  Mr.  P.ayanl.  Sec.  of  State,  Nov.  12,  1888,  For.  Rel.  1880,  01."> ; 
Mr.  Bayard  to  Mr.  Romero.  Nov.  14  and  ir»,  1888,  id.  GIG;  Mr.  Romero 
to  Mr.  Bayard,  Dec.  (*>.  18S8.  id.  G17  ;  Mr.  Bayard  to  Mr.  Romero,  March 
1,  1889,  id.  G21.  It  is  from  the  note  of  Mr.  Bayard  of  March  1,  1889, 
that  the  quotations  in  the  foregoing  summary  are  made.  The  con- 
vention referred  to  below,  was  signed  later  in  the  day.  For  the  full 
report  of  Major  Ernst,  the  United  States  engineer.  Dec.  12,  1888,  see 
S.  Ex.  Doc.  144,  r>()  Cong.  2  sess.  4.S.  See  Mr.  Sherman,  Sec.  of  State, 
to  Mr.  Romei'o.  April  12,  1898,  referring  to  an  understanding  for  "  the 
continuance  of  repairs  upon  heretofore  authorized  defensive  facings 
on  the  Mexican  bank  [of  the  Rio  Grande,  at  Ciudad  Juarez  J.  while 
prohibiting  the  building  of  new  works  [i.  e.,  a  new  wing  dam]  in  the 
river  bed  itself,  not  authorized  by  the  commlsion."  (MS.  Notes  to 
Mex.  Leg.  X,  388.) 

By  a  convention  concluded  March  1,  1889,  provision  was  made  for 
the  establishment  of  an  international  commission,  commonly  called 
the  International  AVater  Boundary  Commission,  which  should  have 
jurisdiction  of  questions  arising  under  the  convention  of  Novem- 
ber 12,  1884.  The  commissicm  thus  provided  for  consists  of  two 
commissioners,  one  apjK)inted  by  each  (xovernment,  two  considting 
engineers  api)ointe(l  in  the  same  manner,  and  such  secretaries  or  inter- 
l)reters  as  either  (lovernment  may  see  fit  to  appoint.  If  the  two 
commissioners  agree,  their  decision  is  final  unless  either  (iovennnent 
shall  within  a  month  from  its  rendition*  disapprove  it.  In  case 
either  (lovernnient  shall  disaj^prove  it,  both  (lovernments  engage  to 
take  cognizance  of  the  matter  and  to  decide  it  amicably,  bearing 
constantly  in  mind  the  stipulations  of  Article  XXI.  of  the  treaty  of 
(luadalui)e  Hidalgo  in  favor  of  arbitration  where  practicable.  The 
two  (lOvernments  also  engage  to  proceed  in  the  same  manner  in  case 
the  two  connnissioners  disagree.  It  was  i:)rovided  that  the  conven- 
tion .should  remain  in  force  five  years  from  the  date  of  the  exchange 
of  ratifications.  The  ratifications  were  exchanged  December  24, 
1890.  In  his  annual  message  of  December  9,  1891,  President  Harri- 
son stated  that  Mexico  had  named  her  members  of  the  commission, 
and  that  an  appropriation  was  "  necessary  to  enable  the  United  States 
to  fulfill  its  treaty  obligation  in  this  respect."'  By  a  convention  of 
October  1,  1895,  the  powers  of  the  international  commission  were 
extended  for  a  year  from  December  24.  1895,  to  enable  the  commis- 
sion to  ••  conclude  the  examination  and  decision  of  the  cases  sub- 


§  160.]  DETERMINATION    OF    BOUNDARIES.  763 

mitted  to  it.""  Otlicr  extensions  were  subsequently  i)rovi(led  for;" 
and  at  length,  bv  a  convention  signed  November  :21.  li>00.  the  rati- 
fications of  Avhich  were  exchanged  on  the  24th  of  the  following 
month,  the  convention  of  March  1,  1881),  was  extended  indefinitely. 

"  I  have  to  acknowledge  the  receipt  of  your  letter  of  the  .Sd  instant, 
in  which,  as  attorney  for  the  El  Paso  and  Xortheastern  Railroad 
Company,  you  complain  that  the  ITnited  States  and  Mexican  Inter- 
national (AVater)  Boundary  Commission  has  recommended  the  re- 
moval of  certain  embankments  and  other  obstructions  made  by  the 
company  in  the  construction  of  its  road. 

"  You  protest  against  the  commission's  action,  and  ask  for  a  hear- 
ing before  this  Department  on  the  ground  : 

•'  1.  That  the  engineers  have  made  a  mistake  as  to  the  facts  con- 
cerning the  embankments  and  other  structures;   and 

'•  2.  That  there  is  no  warrant  in  the  treaties  or  laws  of  the  United 
States  for  such  proceedings  as  seem  to  be  contemplated  in  the  action 
of  the  commissioners. 

''  The  action  of  the  commissioners  was  taken  under  the  convention 
between  the  United  States  and  Mexico  of  March  1,  1889,  and  the 
conventions  continuing  it  in  force.  By  Article  VIII.  of  that  con- 
vention, it  is  stipulated  that  if  both  commissioners  shall  agree  to  a 
decision  their  judgment  shall  be  c(msidered  as  binding  upon  both 
Governments,  unless  one  of  the  Governments  shall  disapprove  it 
within  one  month,  reckoned  from  the  day  on  which  it  shall  have  been 
pronounced.  The  decision  of  the  commissioners  on  the  matter  to 
which  you  refer  was  did}'  pronounced  on  the  3rd  of  May,  more  than  a 
month  before  the  receipt  of  your  letter;  and,  some  days  previously 
to  the  receipt  of  your  letter,  the  decision  was  expressly  approved. 

"The  Depaj-tment  would  upon  this  ground  alone  be  precluded 
from  granting  your  request  for  a  hearing;  but  it  is  proper  to  add 
that,  if  the  decision  had  not  already  become  operative  under  the 
convention,  no  ground  has,  in  the  opinion  of  this  Department,  been 
disclosed  for  its  considering  the  question  of  setting  aside  the  decision 
of  the  commissioners.  As  to  the  question  of  their  legal  authority, 
it  is  only  necessary  to  advert  to  the  circumstance,  to  which  reference 
has  already  been  made,  that  the  proceedings  of  the  commissioners 
were  taken  under  a  duly  ratified  treaty,  which  is,  by  the  Constitu- 
tion of  the  United  States,  a  law  of  the  land. 

"As  to  questions  of  fact  touching  the  embankments  and  other 
structures,  this  Government  has  pursued  the  only  practicable  course 
of  acting  upon  the  reports  of  representatives  specially  appointed  for 
the  purpose  of  informing  it  upon  such  matters." 

o  See  For.  Rel.  1897,  403-405. 


764  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [S  1^^- 

Mr.  Moore.  Assist.  Sw.  of  State,  to  .Mr.  McGowan.  June  15.  1898.  lilii)  MS. 
Doin.  Letters.  'A't\. 

President  McKiiiley,  in  lii.s  annual  message  of  Dee.  ">.  18J)S,  statetl  that  the 
eonniiission  liad  adjusted  all  the  matters  eonunitted  to  it  "  to  the  sat- 
isfaetion  of  l)oth  Governments."  exeeitt  (1)  the  case  of  the  "  Cham- 
izal."  at  El  I'aso.  Texas,  in  which  tlie  connnissioners  failed  to  agree 
and  in  which  tlie  FnitiHl  States  had  suggested,  for  the  pai'ticular 
instance,  the  addition  of  a  tliird  member;  (2)  "tlie  proposed  elimi- 
nation of  wliat  are  liuown  as  '  Bancos,'  small  isolated  islands  formed 
hy  the  cutting  olT  of  l)ends  in  the  Hio  Grande,  from  the  operation  of 
the  treaties  of  1884  and  1889.  reconnnended  l)y  tlie  commissioners 
and  approved  hy  this  (Jovernment.  Imt  still  under  consideration  by 
Mexico:  "  and  (.'i)  "  the  subject  of  the  '  E(iuital>le  Distribution  of  the 
Waters  of  the  Itio  (irande,"  for  which  tlie  commissioners  recom- 
niended  an  international  dam  and  reservoir,  approved  by  Mexico,  but 
still  under  consideration  by  this  (iovernment." 

As  to  the  four  reports.  date<^l  .June  30,  1897.  in  the  case  of  bridges  at 
Laredo  and  at  Eagle  Pass.  Texas,  jetties  at  Hidalgo,  Texas,  and 
defensive  works  at  Brownsville.  Texas,  see  Mr.  Cridler,  Third  Assist. 
See.  of  State,  to  Gen.  Mills.  Oct.  26.  1897,  222  MS.  Dom.  Let.  23. 
enclosing  the  four  rei>orts  of  the  latter,  all  dated  June  30,  1897.  with 
enclosures,  all  in  original. 

October  12.  1894,  Mr.  Romero.  Mexican  minister  at  Washington, 
represented  the  urgent  necessity  of  a  decision  as  to  the  taking  of 
water  from  the  Rio  (irande  in  Colorado  and  New  Mexico,  which 
Avas  said  to  have  seriously  ali'ected  the  existence  of  the  frontier  com- 
nuuiities  for  several  miles  below  I*aso  del  Norte.  The  communica- 
tion was  referred  to  the  Secretary  of  Agriculture.  There  seemed  to 
be  reason  to  believe  that  the  low  state  of  the  Rio  Grande  at  Ciudad 
Juarez  was  due  to  drought  rather  than  to  the  use  of  the  waters  for 
irrigation. 

For.  Rel.  1894,  395,  397. 

"  The  problem  of  the  storage  and  use  of  the  waters  of  the  Rio 
Grande  for  irrigation  should  be  solved  by  appropriate  concuiTent 
action  of  the  two  interested  countries.  Rising  in  the  Colorado 
heights,  the  stream  flows  intermittently,  yielding  little  water  during 
the  dry  months  to  the  irrigating  channels  already  constructed  along 
its  course.  This  scarcity  is  often  severely  felt  in  the  regions  where 
the  river  forms  a  common  boundary.  Moreover  the  frequent  changes 
in  its  course  through  level  sands  often  raise  embarrassing  questions 
of  territorial  jurisdicition.*' 

President  Cleveland,  annual  message.  Dec.  3,  1894. 

The  Mexican  Government  having  represented  that  the  diminution 
of  the  watei-  in  the  Rio  Grande  by  irrigation  works  on  its  upper 
waters  and  their  atlluents  in  Colorado  and  New  Mexico  was  a  viola- 


§  160.]  DETERMINATION    OF    BOUNDARIES.  765 

tion  of  international  law  and  of  Article  VII.  of  the  treaty  of  (iiiada- 
lupe  Hidalgo  of  February  2,  1848,  the  Attorney-(ieneral  of  the 
United  States  advised  (1)  that,  under  international  law,  the  United 
States  was  not  obliged  to  deny  to  its  inhabitants  the  use  of  the  waters 
of  that  part  of  the  river  lying  wholly  within  its  jurisdiction,  even 
though  such  use  reduced  the  volume  of  water  below  the  point  where 
the  river  ceased  to  be  wholly  within  the  United  States,  and  (2)  that 
the  operation  of  Article  YII.,  which  prohibited  "any  work  that  may 
impede  or  interrupt,  in  whole  or  in  part,"  the  right  of  navigation, 
was  in  terms  limited  to  that  part  of  the  river  which  formed  the  com- 
mon boundary  between  the  two  countries.  The  Attorney-General 
()i)served  that  it  did  not  pertain  to  his  Department  to  consider 
whether  any  action  should  be  taken  on  grounds  of  comity  or  of  policy. 

Harmoji,  At.-Gen.  (Dec.  12,  1895),  21  Op.  274. 

Proceedings  were  taken  in  1897  by  the  Attornoy-dleneral,  under  the  acts 
of  Congress  of  Sept.  19,  1890.  §  10,  2(J  Stat.  426.  4."'>4.  and  July  V6,  1892. 
§  3.  27  Stat.  88.  110.  which  prohibit  the  creation,  without  permission 
of  the  Secretary  of  War,  of  any  oltstruction  to  the  navigable  capacity 
of  any  waters  in  respect  of  which  the  United  States  has  jurisdiction. 
It  was  held  that  this  prohibition  extended,  not  merely  to  ol)struc- 
tions  built  at  places  where  a  stream  is  navigable,  but  to  "  any  ob- 
struction to  the  navigable  capacity,"  embracing  "  anything,  where- 
ever  done  or  however  done,  within  the  limits  of  the  jurisdiction  of 
the  United  States,  which  tends  to  destroy  the  navigable  capacity 
of  one  of  the  navigable  waters  of  the  United  States."  Hence, 
although  it  was  found  that  the  Rio  Grande  was  not  a  navigable 
river  in  New  Mexico,  the  case  was  remanded  to  the  court  below 
with  instructions  "  to  order  an  incjuiry  into  the  question  whether  the 
intended  acts  of  the  defendants  in  the  construction  of  a  dam  and  in 
appropriating  the  waters  of  the  Kio  (irande  [at  Elephant  Butte,  in 
New  Mexico]  will  substantially  diminish  the  navigability  of  that 
stream  within  the  present  limits  of  navigability,  and  if  so,  to  enter 
a  decree  restraining  those  acts  to  the  extent  that  tliey  will  so 
diminish."  (United  States  ;•.  Kio  Grande  Dam  and  Irrigation  Co. 
(1899),  174  U.  S.  (ilK).  708-709.  710.) 

See.  supra.  §  1.32.  p.  iiTA. 

It  seems  that  the  further  use  of  the  River  Pecos  for  irrigation  purposes 
would  not  affect  the  international  question  between  the  United 
Stiites  and  Mexico,  since  it  "  falls  into  the  Rio  Grande  at  a  point 
where  the  diminution  of  its  waters  have  little  if  any  perceptible 
effect  upon  the  volume  passing  downward  from  that  i)oint."  (Mr. 
Olney.  Sec.  of  State,  to  Sec.  of  Interior,  Jan.  11,  1897.  21.")  MS.  Dom. 
Let.  1(X».) 

"  The  operations  of  the  international  commission  organized  under 
the  convention  of  March  1,  1880,  between  the  United  States  and 
Mexico  to  determine  disputes  which  have  arisen  by  reason  of  changes 
in  the  fluvial  boundary  of  the  two  countries,  having  Ikhmi  extended 
for  another  year,  until  December  24,  18'JO,  by  a  convention  signed 


7(l6  NATIONAL   JURISDICTION  :    TERRITORIAL   LIMITS.     L§^  1^1?  1^'^- 

October  1,  1895,  occasion  was  taken  at  the  same  time,  by  a  friendly 
understanding  between  the  two  (Jovernments,  to  enlarge  the  duties 
of  the  commissioners  by  charging  them  to  examine  and  report  touch- 
ing questions  of  irrigation  and  storage  dams  on  the  Rio  Grande.  Im- 
portant issues  are  involved  therein,  onlv  to  be  determined  in  principle, 
and.  as  to  that  part  of  the  river  which  forms  the  common  boundary, 
in  fact  also,  by  a  conventional  agreement  of  the  two  countries,  so  that 
it  naturally  behooves  them  to  approach  the  discussion  and  negotia- 
tion with  all  possible  knowledge,  in  order  that  the  riparian  rights  of 
the  respective  owners  of  the  river  banks  may  be  justly  determined  and 
intelligently  enforced." 

Report  of  Mr.  Oliiey.  Sw.  of  State,  to  the  I'resideiit,  Dec.  7,  1890,  For. 
Rel.  189«j. 

For  corre8i)oiuleiK-o  as  to  the  pumping  station  of  tlie  Arizona  Improvement 
Company,  on  tlie  Colorado  River,  near  Yuma,  see  Mr.  Sherman,  See. 
of  State,  to  Mr.  Romero.  Mex.  min.,  April  18,  1898,  MS.  Notes  to  Mex. 
Leg.  X.  '.'AMK  in  reply  to  a  note  of  Mr.  Romero  of  April  14 ;  and  Mr. 
Day.  See.  of  State,  to  Mr.  Romero,  Mex.  min.,  .June  21.  1898,  id.  414, 
enclosing  a  letter  from  the  governor  of  Arizona  of  Jinie  8.  1898,  ex- 
pressing the  opinion  that  the  pumping  would  "  in  no  way  impair  the 
uavigahility  of  the  river  at  any  point." 

The  International  Water  Boundary  Commission,  as  the  result  of 
their  consideration  of  tlie  sul)ject  of  the  "  equitable  distribution  of  the 
waters  of  the  Rio  Grande,"  "  recommended  an  international  dam  and 
reservoir,  approved  by  Mexico,  but  still  under  consideration  by  this 
Government."' 

Tresident  McKinley,  annual  message,  Dec.  5.  1898. 

See  Reports  on  the  Investigation  and  Survey  for  an  International  Dam 
and  Reservoir  on  the  Rio  (irande  del  Norte  to  I'reserve  the  Boundary 
Between  the  I'nited  States  and  Mexico  l)y  Controlling  the  Flood 
Waters  of  Said  River,  witli  Appendices  A.  B.  C.  D.  and  E.  hy  Anson 
Mills.  Major  loth  Cavalry.  Supervising  Engineer  Ceological  Survey, 
and  W.  W.  Follett.  Civil  Engineer:  Washington,  Government  Print- 
ing Office.  189(>,  8<)  pp. 

3.  THK    I'UlLiri'I.NES. 

^  101. 

As  to  the  boundary  of  the  Philippine  Islands,  see  supra,  §  109, 
pp.  530-5;U. 

4.  Samoa N  Islands. 

^  H)2. 

As  to  the  boundary  of  the  American  islands  in  the  Samoan  group, 
pee  supra,  §  110,  p.  553. 


§  163.]  FISHERIES.  767 

IV.  XOHTHIJASTERS  FISHERIES. 

1.  Treaiy  ok  1782-83. 

§  163. 

"  The   argument   on   which   the   people   of   America    fomid   their 
Negotiations  of     chijm  to  fish  on  the  banks  of  Newfoundland  arises. 
1782.  first,  from  their  havingf  once  formed  a  part  of  the 

British  Empire,  in  which  state  they  always  enjoyed,  as  fully  as  the 
people  of  Britain  themselves,  the  right  of  fishing  on  those  banks. 
They  have  shared  in  all  the  wars  for  the  extension  of  that  riglit ;  and 
Britain  could  with  no  more  justice  have  excluded  them  from  the  en- 
joyment of  it  (even  supposing  that  one  nation  could  possess  it  to  the 
exclusion  of  another),  while  they  formed  a  part  of  that  Empire,  than 
they  could  exclude  the  people  of  London  or  Bristol.  If  so,  the  only 
inquiry  is.  How  have  we  lost  this  right  ?  If  we  were  tenants  in  com- 
mon with  Great  Britain  while  united  with  her.  we  still  continue  so. 
unless  by  our  own  act  we  have  relincjuished  our  title.  Had  we  parted 
with  mutual  consent  we  should  doubtless  have  made  partition  of  our 
common  right  by  treaty.  But  the  oppressions  of  (treat  Britain 
forced  us  to  a  separation  (which  nnist  be  admitted,  or  we  have  no 
right  to  l>e  independent)  :  and  it  can  not  certainly  be  contended  that 
those  oj)i)ressions  abridged  our  rights  or  gave  new  ones  to  Britain. 
Our  rights,  then,  are  not  invalidated  by  this  separation,  more  par- 
ticularly as  we  have  kept  up  our  claim  from  the  commencement  of 
the  war.  and  assigned  the  attempt  of  Great  Britain  to  exclude  us 
from  the  fisheries  as  one  of  the  causes  of  our  recurring  to  arms." 

Mr.  K.  K.  Livingston.  Set-retary  of  State,  to  Dr.  Franlvlin.  .January  7, 
17S2.  .".  Wharton's  Dip.  C"or.  Am.  Rev.  87.  !)1  :  !)  Franlvlin's  Works 
(Sparlvs'  ed.),  1.3.5. 

"  Louisl»urg,  on  Cape  Breton,  hold  hy  tlie  French,  was  supposed  to  he  the 
most  important  and  connnanding  station  [in  French  North  America] 
and  to  have  more  influence  than  any  other  upon  the  destinies  of  this 
part  of  the  country.  And.  Mr.  President,  it  was  a  force  of  betwetMi 
three  and  four  thousand  Mas-sachusetts  men.  under  Pepperell.  and 
a  few  hundred  from  the  colonies,  with  two  hundred  and  ten  vessels, 
that  sailed  to  Louishurg.  invested  and  took  it  for  the  British  Crown 
in  trust  for  the  British  Crown  and  her  colonies."  (Mr.  Dana,  Hall- 
fax  Com..  II.  1(>.53.) 

Among  the  sul)jects  discussed  l)v  the  peace  commissioners  of  the 
Ignited  States  and  (ireat  Britain  at  Paris  in  1782,  the  two  that  were 
the  most  strongly  contested  and  the  last  disposed  of  were  those  of  the 
fisheries  and  the  compensatitm  of  the  loyalists.  The  provisional  arti- 
cles of  peace  were  concluded  November  30,  17S-2.  On  the  25th  of  that 
month  the  liritish  commissioners  delivered  to  the  American  commis- 
sioners a  third  set  of  articles,  containing  fresh  proposals  of  the  Brit- 


7(iS  NATIONAL    .UHISDICTION  :    TERRITORIAL    LIMITS.  [^1G3. 

isli  miiiislrv,  and  represent iii«i'  the  results  of  many  weeks  of  negotia- 
tion. Hv  tlie  third  articU'  it  was  proposed  that  "  tlie  citizens  of  the 
Tnited  States  shall  have  the  lihevttj  of  taking  fish  of  every  kind  on 
all  the  hanks  of  New  foundland,  and  also  in  the  (iulf  of  St.  Lawrence; 
and  also  to  dry  and  cure  their  fish  on  the  shores  of  the  Isle  of  Sables 
and  on  the  shore-^  of  any  of  the  unsettled  hays,  harbors,  and  creeks  of 
the  Magdalen  Islands,  in  the  (Julf  of  St.  Lawrence,  so  long  as  such 
bays,  harbors,  and  ci-eeks  shall  continue  and  remain  unsettled,  on  con- 
dition that  the  citizens  of  the  said  United  States  do  not  exercise  the 
fishei-y  but  at  the  distance  of  three  leagues  from  all  the  coast  belong- 
ing to  (Jreat  Britain,  as  well  those  of  the  continent  as  those  of  the 
islands  situated  in  the  (iulf  of  St.  Lawrence.  And  as  to  what  relates 
to  the  fishery  on  the  coast  of  the  island  of  Cape  Breton  out  of  the 
said  gulf,  the  citizens  of  the  said  United  States  shall  not  be  per- 
mitted to  exercise  the  said  fishery  but  at  the  distance  of  fifteen  leagues 
from  the  coasts  of  the  island  of  Cape  Breton.""  This  proposal,  by 
which  the  citizens  of  the  United  States  were  forbidden  not  only  to 
dry  fish  on  tlu>  shores  of  Nova  Scotia,  but  also  to  take  fish  within 
three  leagues  of  the  coasts  in  the  (Julf  of  St.  Lawrence  and  within 
fifteen  leagues  of  the  coasts  of  Cape  Breton  outside  of  that  gulf,  was 
iniacceptabh^  to  the  American  connnissioners.  On  the  2Stli  of  No- 
vember John  Adams  drew  up  a  counter  project,  which  was  submitted 
in  a  conference  of  the  commissioners  on  the  following  day.  It  pro- 
vided that  the  subjects  of  Ilis  Britannic  Majesty  and  the  people  of 
the  United  States  should  *'"  continue  to  enjoy,  unmolested,  the  right 
to  take  fish  of  every  kind,  on  the  (irand  Bank,  and  on  all  the  other 
banks  of  Newfoundland:  also  in  the  (Julf  of  St.  I^awrence,  and  in 
all  other  places,  whei'e  the  inhabitants  of  both  countries  nsed  at  any 
time  heretofore  to  fish."  and  that  the  citizens  of  the  Ignited  States 
should  "  have  liberty  to  cure  and  dry  their  fish  on  the  shores  of  Cape 
Sables,  and  any  of  the  unsettled  l)ays,  harbors,  or  creeks  of  Nova 
Scotia,  or  any  <»f  the  shores  of  the  Magdalen  Islands,  and  of  the 
Labrador  coast:"  and  that  they  should  be  "■  i)ermitte(l,  in  time  of 
peace,  to  hire  pieces  of  land,  for  terms  of  years,  of  the  legal  jjro- 
prietors,  in  any  of  the  dominions  of  his  Majesty,  whereon  to  erect 
the  necessary  stages  and  buildings,  and  to  cure  and  dry  their  fish."" 
One  of  the  BiMtish  commissioners  objected  to  the  use  of  the  word 
r'n/ht,  in  resj)ect  of  the  taking  of  fish  on  the  (irand  Bank  and  other 
banks  of  Newfoundland,  in  the  (Iulf  of  St.  Lawrence,  "  and  in  all 
other  j)laces,  where  the  inhal)itants  of  both  countries  used  at  any  time 
heretofore  to  fish."  Anothei-  said  that  "  the  word  r'n/Jit  was  an 
obnoxious  ex|)ression."'     Adams  vehemently  contended  for  tlie  right 


1  Wliarton's  I>i|i.  ("or.  Am.  liev.  VI.  74-70. 
6  Id.  85. 


§  16^-]  THE    NORTHEASTERN    FISHERIES.  769 

of  the  people  of  America  to  fish  on  the  hanks  of  XewfouiKUaiuL'  and 
finalk  dechired  that  he  woiikl  not  si^n  any  articles  without  satisfac- 
tion in  respect  of  the  fishery.''  The  British  connnissioners  conceded 
the  point,  and  aftei-  many  suggestions  and  amemhnents '  the  foHow- 
]ng;  article  was  agreed  on: 

"Article  III.  It  is  agreed  that  the  people  of  the  United  States 
shall  continue  to  enjoy  unmolested  the  right  to  take  fish  of  every  kind 
on  the  Grand  Bank,  and  cm  all  the  other  Inmks  of  Newfoundland; 
also  in  the  Gulph  of  St.  LaAvrence.  and  at  all  other  i)laces  in  the  sea. 
where  the  inhahitants  of  i)oth  countries  used  at  any  time  heretofore 
to  fish:  and  also  that  the  inhabitants  of  the  T'nited  States  shall  have 
liberty  to  take  fish  of  every  kind  on  such  part  of  the  coast  of  New- 
foundland as  l^ritish  fishei-men  shall  use.  (but  not  to  dry  or  cure  the 
same  on  that  island;)  and  also  on  the  coasts,  bays  and  creeks  of  all 
othei-  of  his  Britannic  Majesty's  dominions  in  America:  and  that  the 
American  fishermen  shall  have  liberty  to  dry  and  cure  fish  in  any  of 
the  unsettled  bays,  harbours  and  creeks  of  Nova  Scotia.  Magdalen 
Islands,  and  Labrador,  so  long  as  the  same  shall  remain  unsettled; 
but  so  soon  as  the  same  or  either  of  them  shall  be  settled,  it  shall  not 
be  lawful  for  the  said  fishermen  to  dry  or  cure  fish  at  such  settlement, 
without  a  previous  agreement  for  that  purpose  with  the  inhabitants, 
proprietors  or  j)ossessors  of  the  ground." 

By  this  article  it  was  agreed  tliat  the  peoj^le  of  the  United  States 

should  continue  to  enjoy  the  "  right  "  to  take  fish  on 

]^^  V   ^"       idl  the  i)anks  of  Newfoimdland  and   in  the  Gulf  of 
liberties.  . 

St.  Lawrence,  and  "  at  all  other  places  m  the  sea, 
where  the  iidud)itants  of  both  countries  had  been  accustomed  to  fish; 
and  that  the  inhabitants  of  the  United  States  should  have  the  "  lil)- 

"'•('aii  tliero  hv  a  clearer  rijxlitV"  exclaiine<l  Adams.  "In  former  treaties, 
that  of  t'treeht.  and  that  of  I'aris,  Franet>  and  England  have  claimed  the  rijrht 
and  have  nse<l  the  word.      (Id.  KC.. ) 

'> '•  The  iidiahitants  of  the  rnite<l  States  had  as  clear  a  rifrht  to  every  hranch 
of  the  fisheries,  and  to  cnre  tish  on  land,  as  the  iidiahitants  of  Canada  or  Nova 
Scotia  :  .  .  .  the  citizens  of  lioston.  New  York,  or  rhiladel|)hia  had  as  clear  a 
titrht  to  those  fisheries,  jind  to  cure  fish  on  land,  as  the  inhahitants  of  London. 
I,iveri>ool.  Bristol,  (ilasgow.  or  I>nhlin.  4.  That  the  third  article  was  demanded 
as  an  lUtiinatinn.  and  it  was  declart^l  that  no  treaty  of  peace  should  he  made 
withont  that  .article :  and  when  the  British  ministers  fonnd  that  ]'eace  could  not 
he  made  v.ithout  that  article,  they  consented;  for  Britain  w.-uited  peace,  if  |ios- 
sihle.  more  than  we  did.  .">  We  a.sked  no  favor,  we  re<iuested  no  grant,  and 
would  accept  none."  (Ex-President  .Tolin  Adams  to  William  Thomas.  Aufrust 
lo.  1S2L'.  .Vdams'  Works.  X.  40.S.  This  letter  was  tiuoted  and  its  positions 
adopte<l  hy  Mr.  Cass  in  his  speech  on  the  fisheries  in  the  Senate  on  August  :^. 
1S.">2  (App.  Cong,  filohe.  ISai.  ;i2  Cong.  1  sess.  894.)  See  report  on  the  fisheries 
hy  Lorenzo  Sahine.  1S.5:?. ) 

'■Wharton's  Dij).  Cor.  Am.  Hev.  VI.  8(i. 

H.  Doc.  551 iO 


770  NATIONAL    JURTSmCTION  :    TERRITORIAL    LIMITS,  [§  163. 

crty  "'  to  take  lish  on  th(>  coast  of  Xewfoinulland  and  on  the  coasts, 
l)avs.  and  creeks  of  all  other  of  His  Britannic  Majesty's  dominions  in 
America,  and  also  the  '*  liberty  "  to  dry  and  cure  fish,  subject  to  the 
conditions  stated  in  the  article. 

AVhen  the  plenipotentiaries  of  the  United  States  and  Great  Britain 
The  Fisheries  and    "^^'^    '^^    (ihent    on    the    8th    of    August,    1814,    the 
the  Mississippi    British  plenipotentiaries,  after  proposing  three  points 
at  Ghent.  foj.    discussion,    said    that,    before    they    desired    an 

answer  on  these  points.  "  they  felt  it  incumbent  upon  them  to  de- 
clare that  the  British  (lovernment  did  not  deny  the  right  of  the 
Aniericans  to  fish  generally,  or  in  the  open  seas;  but  that  the  privi- 
leges formerly  granted  by  treaty  to  the  United  States  of  fishing  within 
the  limits  of  the  British  jurisdiction,  and  of  landing  and  drying  fish 
on  the  shores  of  the  British  territories,  would  not  be  renewed  without 
an  equivalent."'  What  they  considered  to  be  exclusively  British  wa- 
ters they  did  not  state."  On  the  10th  of  August  they  also  brought 
forward,  as  a  subject  of  discussion,  the  free  navigation  of  the  Missis- 
>ip]ii.  which  had  been  secured  to  British  subjects  by  the  treaty  of 
])eace  of  1783.'^  On  the  10th  of  November  the  American  plenipoten- 
tiaries submitted  to  the  Ih'itish  plenipotentiaries  a  project  of  a  treaty; 
and  in  the  note  that  accompanied  it  they  said  they  were  "  not  author- 
ized to  bring  into  discussion  i\ny  of  the  rights  or  liberties  ''  which  tlie 
l"'nited  States  had  theretofore  enjoyed  in  relation  to  the  fisheries. 
The  project  contained  nothing  either  as  to  tlie  fisheries  or  the  Mis- 
sissippi; but  the  l^ritish  plenipotentiaries,  in  returning  it,  inserted 
in  one  of  the  articles  relating  to  the  i)()undary  westward  from  the 
Lake  of  the  Woods  an  amendment  to  the  effect  that  British  subjects 
should  have  and  enjoy  the  free  navigation  of  that  river.''  ThexVmeri- 
can  plenipotentiaries  offered  to  enlarge  this  amendment  by  making  it 
also  pi-()vide  that  the  inhal)itants  of  the  United  States  should  "  con- 
linuc  to  enjoy  the  liberty  to  take.  dry.  and  cure  fish  in  places  within 
the  exclusive  jurisdiction  of  (ireat  Britain.""  or  else  to  omit  the  article 
altogether.''  In  re|)ly  the  P>ritish  ])lenipotentiaries  })rop()sed.  while 
retaining  the  article,  to  substitute  for  the  ])revious  amendments  a 
stipulation  embracing  two  clauses,  one  to  the  effect  that  His  Britan- 
nic Majesty  would  enter  into  negotiations  with  the  United  States  for 
the  preservation  to  the  latter  of  the  '*  liberty  "  in  the  fisheries,  as  stipu- 
lated by  the  ti'eaty  of  I7s:'>.  in  consideration  of  "'  a  fair  equivalent'"  to 
be  granted  to  the  United  States  •"  for  such  liberty  as  aforesaid;"  and 
the  other  to  the  effect  that  the  United  States  would  enter  into  negotia- 
tions as  to  the  terms  on  which  the  navigation  of  the  Mississippi,  as 
stipulated  in  the  treaty  of  1788.  should  be  preserved  to  His  Britannic 
Majesty.'     The  American  ])leni]:)otentiaries  answered  that  a  stipula- 

"  Am.  state  rai>ers.  For.  Kel.  III.  To.j.  -id.  7.''.S.  c  Id.  743. 

6  Id.  710.  d  Id.  742. 


§  163.]  THE    NORTHEASTERN    FISHERIES.  771 

tion  that  the  parties  would  in  the  future  negotiate  on  the  subjects  in 
question  was  unnecessary:  they  were  willing  to  be  silent  in  regard  to 
both  of  them  or  to  agree  to  an  engagement,  couched  in  general  terms, 
so  as  to  embrace  all  sul>jects  of  difference  not  yet  adjusted,  or  so  ex- 
pressed as  not  to  imply  the  abandonment  of  any  right  claimed  by  the 
United  States.'^  Under  these  circumstances  the  British  plenipoten- 
tiaries withdrew  their  proposed  stipulation,  saying:  "The  under- 
signed, returning  to  the  declaration  made  by  them  on  the  Sth  of  Au- 
gust, that  the  priyileges  of  fishing  within  the  limits  of  the  British 
soyereignty,  and  of  using  the  British  territories  for  purposes  connected 
Avith  the  fisheries,  were  what  (ireat  Britain  did  not  intend  to  grant 
without  an  equiyalent.  are  not  desirous  of  introducing  any  article  on 
the  subject.  With  a  yiew  of  remoying  what  they  consider  as  the  only 
objection  to  the  immediate  conclusion  of  the  treaty,  the  undersigned 
agree  to  adopt  the  proposal  made  by  the  American  plenipotentiaries 
...  of  omitting  the  8th  article  altogether."  ''  Thus  it  came  about  that 
the  treaty  concluded  at  Ghent  on  December  24,  1814,  contained  no 
mention  either  of  the  fisheries  or  of  the  nayigation  of  the  Mississipi:)i. 
On  the  19th  of  June.  1815.  an  American  fishing  yessel,  engaged  in 
Lord  Bathurst's  ^^^^'  ^'^^^  fishery,  was.  when  about  forty-fiye  miles 
Position  as  to  from  Cape  Sable,  warned  by  the  commander  of  the 
"Eights"  and  British  sloop  Jn^eur  not  to  come  within  sixty  miles 
"Liberties."         ^f  ^j^g  ^.^.^^j      jj-^j^  ^^^  ^j^g  British  Goyernment  dis- 

ayowed:''  but  Lord  Bathurst  is  reported  at  the  same  time  to  haye 
declared  that,  Ayliile  it  Avas  not  the  Goyernment's  intention  to  inter- 
rupt American  fishermen  "  in  fishing  anywhere  in  the  open  sea,  or 
without  the  territorial  jurisdiction,  a  marine  league  from  the  shore."' 
it  ••  could  not  permit  the  yessels  of  the  United  States  to  fish  within 
the  creeks  and  close  upon  the  shores  of  the  British  territories."'  ^  John 
Quincy  Adams.  Ayho  was  then  minister  of  the  United  States  in 
London,  maintained  that  the  treaty  of  peace  of  1783  "  was  not,  in  its 
general  proyisions.  one  of  those  which,  by  the  common  understand- 
ing and  usage  of  ciyilized  nations,  is  or  can  be  considered  as  annulled 
by  a  subsequent  war  between  the  same  parties.""  ^ 

Lo  r  d  B  a  t  h  u  r  st  re  J)  1  i  e  d  : 

"  To  a  position  of  this  noyel  nature  Great  Britain  can  not  accede. 
She  knows  of  no  exception  to  the  rule,  that  all  treaties  are  put  an 
end  to  by  a  subsequent  war  between  the  same  parties.  .  .  .  The 
treaty  of  1783,  like  many  others,  contained  proyisions  of  different 


a  Am.  state  I'apers.  For.  Hoi.  Ill,  744. 

&  Am.  State  Papers,  For.  Rol.  III.  744.  74."i :  .1.  Q.  Adams,  The  Fisheries  and 
the  Mississippi.  .54.  .>S;   Gallatin's  Writings.  I.  G46. 
<•  Am.  State  Papers.  For.  Kel.  ly.  :34U. 
<i  Id.  ;i50. 
e  Id.  352. 


i  rj 


NATIONAL    JUKISDIC'TION  :    TEKHITOKIAL    LIMITS.  [§  1<^3- 


c-hiiractors — some  in  thoir  own  natiiiv  invvocable.  and  others  of  a 
toinporarv  nature.  .  .  .  'J'he  nature  of  the  liberty  to  fish  within 
Rritislj  limits,  oi-  to  use  British  territory,  is  essentially  diii'erent  from 
(he  ri<rht  of  iiujependence.  in  all  that  may  reasonably  be  supposed  to 
ie<>:ard  its  int(>nded  duration.  ...  In  the  third  article  [of  the 
treaty  of  1 7S-2~<s;>)  | ,  (Jreat  liritain  ackno\vled<;es  the  r!(/ht  of  the 
United  States  to  take  fish  on  the  banks  of  Newfoundland  and  other 
])laces.  from  which  (ireat  Britain  has  no  right  to  exclude  an  inde- 
pendent nation.  But  they  are  to  have  the  liherty  to  cure  and  dry 
tlxMu  in  certain  unsettled  places  within  His  Majesty's  territory. 
If  these  libci-ties,  thus  granted,  were  to  be  as  j)erpetual  and  inde- 
jxMidcnt  as  the  rights  ])reviously  recognized,  it  is  difficult  to  con- 
ceive that  the  j)lenipotentiaries  of  the  United  States  woidd  have 
admitted  a  valuation  of  language  so  adapted  to  j^roduce  a  different 
inij)ression  :  and,  above  all,  that  they  should  have  admitted  so  strange 
;  restriction  of  a  ])erpetual  and  indefeasible  right  as  that  with  Avhich 
the  article  concludes,  which  leaves  a  right  so  ])ractical  and  so  benefi- 
cial as  this  is  admitted  to  be,  dependent  on  the  will  of  British  sub- 
jects, in  their  character  of  iidiabitants,  proprietors,  or  j)ossessors  of 
the  soil,  to  i)rohil)it  its  exercise  altogether.  Tt  is  surely  obvious  that 
the  word  rir/hf  is,  throughout  the  treaty,  used  as  applicable  to  what 
the  rnited  States  were  to  enjoy,  in  virtue  of  a  recognized  inde- 
pendence: and  the  word  J'thertij  to  what  they  Avere  to  enjoy,  as  con- 
cessions strictly  deiTendent  on  the  treaty  itself."" 

This  position  Great  Britain  continued  to  maintain.  From  ISIT)  to 
Controversies     of     l!^!^^  orders  were  issued  by  the  l>ritish  admiralty  to 

1815-1818.  seize  American  vessels  found  fishing  in  British 
waters,  and  though  these  orders  were  not  continuously  enforced,  but 
wei-e  at  vai'ious  times  and  for  various  periods,  generally  with  a  view 
to  iH'gotiation.  sus])ended.  many  seizures  were  actually  made,  and 
much  ill  feeling  was  engendered.  '' 

"  The  nature  of  th(»  rights  and  liberties  consisted  in  the  free  par- 
tici])ati()ii  in  a  p'sJicr;/.  That  fishery,  covering  the  bottom  of  the 
l>anks  which  sui'round  the  island  of  Newfoundland,  the  coasts  of  New 
England,  Nova  Scotia,  the  (iulf  of  Saint  Lawivnce,  and  Labrador, 
furnishes  th(>  rich(>st  ti-easure  and  the  most  beneficent  ti'ibute  that 
ocean  pays  to  earth  on  this  terracpieous  globe.  By  the  i)leasure  of  the 
Creator  of  earth  and  seas,  it  had  b(>en  constituted  in  its  physical 
nature  oif  fishery,  extending  in  the  open  seas  around  that  island,  to 
little  less  than  [\\('  degrees  of  latitud(>  fi-om  the  coast,  spreading  along 
the  whole  northern  coast  of  this  continent  and  insinuating  itself  into 
all  the  bavs,  creeks.  an<]  harbors  to  the  verv  borders  of  the  shores. 


"  Am.  Stiite  I'npers.  For.  Hel.  IV.  :!.">.  :'.."»(;. 

t  Memoirs  (jf  .J.  Q.  Adauis.  HI.  lit*.  li().j  ;  IV.  fit.  March  18,  1818. 


§  163.]  THE    NORTHEASTERN    FISHERTE!5.  773 

For  the  full  enjo^-ment  of  an  equal  share  in  thi.s  fishery  it  was  neces- 
sary to  have  a  nearly  ifeneral  access  to  every  part  of  it.  the  habits  of 
the  frame  which  it  pursues  hein^  so  far  niiofratorv  that  they  were 
found  at  ditl'erent  periods  most  abundant  in  dift'erent  places,  some- 
times populating  the  banks  and  at  others  swarming  close  upon  the 
shores.  The  latter  portion  of  the  fishery  had.  however,  always  been 
considered  as  the  most  valuable,  inasmuch  as  it  afforded  the  means 
of  drying  and  curing  the  fish  immediately  after  they  were  caught, 
which  could  not  be  effected  upcm  the  banks. 

"  By  the  law  of  nature  this  fishery  belonged  to  the  inhabitants  of 
the  regions  in  the  neighborhood  of  which  it  was  situated.  By  the 
conventional  law  of  Europe  it  belonged  to  the  European  nations 
which  had  formed  settlements  in  those  regions.  France,  as  the  first 
principal  settler  in  them,  had  long  claimed  the  exclusire  right  to  it. 
(rreat  Britain.  n)Oved  in  no  small  degree  by  the  value  of  the  fishery 
itself,  had  made  the  conquest  of  all  those  regions  upon  France,  and 
had  limited  by  treaty,  within  a  narrow  compass,  the  right  of  P'rance 
to  any  share  in  the  fishery.  Spain,  upon  some  claim  of  prioi"  dis- 
covery, had  for  some  time  enjoyed  a  share  of  tlu'  fishery  on  the  banks, 
but  at  tlie  last  treaty  of  peace  prior  to  the  American  Revolution  had 
('Xl)ressly  renounced  it. 

"  At  the  commencement  of  the  American  Revolution,  therefore, 
this  fishery  belonged  exclusively  to  the  Br'itlsJi  )i<ition.  subject  to  a  cer- 
tain limited  participaticm  in  it  reserved  by  treaty  stipulations  to 
PVance." 

Mr.  .7.  Q.  Adams,  1"he  Fisheries  and  tlie  Mississippi.  184. 

••  By  the  third  article  of  the  treaty  of  1783  it  was  agreed  that  the 
people  of  the  I'nited  States  should  continue  to  enjoy  the  fisheries  of 
Newfoundland  and  the  Bay  of  Saint  Lawrence,  and  at  all  other 
l^laces  in  the  sea  where  the  inhabitants  of  both  countries  used  at  any 
time  theretofore  to  fxJi ;  and  also  that  they  should  have  certain  fishing 
lil)erties  on  all  the  fishing  coast  within  the  British  jurisdiction  of 
Nova  Scotia,  Magdalen  Islands,  and  Labrador.  The  title  l)y  which 
the  United  States  held  those  fishing  rights  and  liberties  was  the  same. 
It  was  the  possessory  use  of  the  right  ...  at  any  time  theretofore, 
as  British  subjects,  and  the  acknowledgment  by  Great  Britain  of  its 
(■o)itiniianfe  in  the  people  of  the  United  States  after  the  treaty  of 
separation.  It  was  a  national  right;  and,  therefore,  as  much  a  right. 
though  not  so  inmiediate  an  interest,  to  the  people  of  Ohio  and  Ken- 
tuck}'.  ay,  and  to  the  people  of  Louisiana,  after  they  became  a  part 
of  the  jieople  of  the  United  vStates,  as  it  was  to  the  people  of  Massa- 
chusetts and  Maine.** 

Mr.  .1.  «j.  Adams,  Tlie  Fisheries  and  the  Mississippi,  00. 


774  NATI()NAT>    JURTSDICTION  :    TERRITORIAL    LIMITS.  [§163. 

"  The  (•ontiiiuiiiu'o  of  the  Hshiii<r  liberty  Avas  the  great  object  of  the 
article  [the  third  of  the  treaty  of  17s:i|:  and  the  language  of  the 
article  was  acconmiodatecl  to  the  severance  of  the  jurisdictions,  Avhich 
wasconsunnuated  by  the  same  instrument.  It  was  coinstantaneous  with 
the  severance  of  the  jurisdiction  itself,  and  was  no  more  a  gi'ant  from 
(ireat  liritain  than  the  rii/Itt  acknowledged  in  the  other  part  of  the 
article,  or  than  the  independence  of  the  United  States  acknowledged 
in  the  first  article.  It  was  a  continuance  of  possessions  enjoyed 
before:  and  at  the  same  moment  and  by  the  same  act  under  which  the 
rnited  States  acknowledged  those  coasts  and  shores  as  being  under  a 
forcit/ii  jurisdiction,  (ii-eat  liritain  recognized  the  liberty  of  the  peo- 
j)le  of  the  Ignited  States  to  use  them  for  i)urposes  connected  with  the 
lisheries." 

Mr.  .1.  Q.  Adiinis.  Tlio  Fisheries  nnd  the  Mississippi,  188;  adopted  in 
LyiiiMii's  Diiiloiiiacy  of  the  I'liited  States  (2nd  ed.),  I.  117.  which  says  : 
'■  The  treaty  of  'S.",  was  an  instrument  of  a  peculiar  character.  It  different 
in  its  most  essential  characteristics  from  most  of  the  treaties  "nade 
Itetween  nations.  It  was  a  treaty  of  i)artiti()n  ; — a  treaty  to  ascertain 
the  iKunidaries  and  the  rijrht  of  the  nations  the  mother  country 
acknowledjred  to  he  created  hy  that  instrument." 

'•That  this  was  tiie  luiderstanding  of  the  article  by  the  British 
(lovernment  as  well  as  by  the  American  negotiators  is  apparent  to 
demonsti-ation  by  the  debates  in  I'arliament  \\\)(n\  the  i)reliminarv 
articles.  It  was  made,  in  both  houses,  one  of  the  great  objections  to 
the  treaty.  In  the  House  of  Connnons,  Lord  Xorth  .  .  .  said:  'By 
the  third  article  we  have,  in  our  spirit  of  reciprocity,  given  the  Amer- 
icans an  uidimited  right  to  take  fish  of  every  kind  on  the  Great  Bank 
and  on  all  the  other  banks  of  Newfoundland.  But  this  was  not  suf- 
ficient. We  have  also  given  them  the  right  of  fishing  in  the  CJulf  of 
Saint  Lawrence,  and  at  all  other  j)laces  in  the  sea  where  they  have 
heretofore  enjoyed.  tlifoiK/Jt  >/.s.  the  privilege  of  hshing.  They  have 
likewise  the  power  of  even  partaking  of  the  fishery  which  we  still 
I'ctain.  Wv  have  not  been  content  with  I'esigning  what  we  possessed, 
but  even  share  what  we  have  left."  ...  In  this  speech  the  whole  arti- 
cle is  considei'cd  as  an  iuij)i-o\ident  concession  of  British  pro})erty; 
nor  is  there  suggested  the  slightest  distinction  in  the  nature  of  the 
grant  l)etween  the  right  of  iishing  on  the  banks  and  the  libei'ty  of 
the  fishei-y  on  the  coasts.  Still  more  explicit  ai'e  the  words  of  Lord 
Loughljorough.  in  th«'  House  of  Beer.s.  •  IMie  fishery.'  says  he,  '  on  the 
shoi'cx  rifii'inril  hi/  Jirifdiii  is.  in  the  next  article,  not  ceded,  but  recog- 
n'lz,  il  as  a  right  inherent  in  the  Americans,  which,  though  no  longer 
I>riti>h  >ubjects.  they  ai'e  to  contlinic  to  eiijoj/  uuniolcsted.  no  right 
oil  the  othei-  hand  Ix-ing  reserved  to  British  subjects  to  approach  their 
shores,  foi-  the  |)ur|)()se  of  fishing,  in  this  reci])r()cal  treaty.'" 
-Mr.  .1.  (J.  Adams,  ■[■lie  Fislicrics  and  the  Mississippi,  189,  190. 


§  163.]  THE    NOETHEASTERX    FISHERIES.  775 

"As  a  possession,  it  was  to  be  held  by  the  peoj^le  of  the  United  States 
as  it  had  been  hekl  before.  It  was  not  like  the  lands  partitioned  out 
by  the  same  treaty,  a  corporeal  possession,  but,  in  the  technical  lan- 
guage of  the  English  law,  an  incorporeal  hereditament^  and  in  that  of 
the  civil  law  a  right  of  mere  faculty,  consisting  in  the  power  and  lib- 
erty of  exercising  a  trade,  the  places  in  which  it  is  exercised  being 
(K-cui)ied  only  for  the  purposes  of  the  trade.  Now  the  right  or  lib- 
erty to  enjoy  this  possession,  or  to  exercise  this  trade,  could  no  more 
Ije  aifected  or  impaired  by  a  declaration  of  war  than  the  right  to  the 
territory  of  the  nation.  The  interruption  to  the  exercise  of  it,  during 
the  war,  could  no  more  affect  the  right  or  liberty  than  the  occupation 
by  the  enemy  of  territory  could  affect  the  right  to  that.  The  right  to 
territory  could  be  lost  only  by  abandonment  or  renunciation  in  the 
treaty  of  peace;  by  agreement  to  a  new  boundary  line,  or  by  acqui- 
escence in  the  occupation  of  the  territory  by  the  enemy.  The  fishery 
liberties  could  be  lost  only  by  express  renunciation  of  them  in  the 
treaty,  or  by  acquiescence  in  the  principle  that  they  were  forfeited, 
which  would  have  been  a  tacit  renunciation." 

Mr.  .7.  Q.  Atlanis.  Tlif>  Fisheries  and  the  Mississippi,  190;  adopted  in  1 
Lyman's  Diiiloniacy  of  the  U.  S.  117. 

"  In  the  case  of  a  cession  of  territory,  when  the  possession  of  it  has 
been  delivered,  the  article  of  the  treaty  is  no  longer  a  compact  between 
the  })arties,  nor  can  a  subsequent  war  between  them  operate  in  any 
manner  upon  it.  So  of  all  articles  the  purport  of  which  is  the 
acknowledyment  by  one  party  of  a  pre-existing  right  belonging  to 
another.  The  engagement  of  the  acknowledging  party  is  consum- 
mated by  the  ratification  of  tlie  treaty.  It  is  no  longer  an  executory 
contract,  l)ut  a  perfect  right  united  Avith  a  vested  possession  is  thence- 
forth in  one  party,  and  the  acknowledgment  of  the  other  is  in  its 
own  nature  irrevocable.  As  a  bargain,  the  article  is  extinct:  but  the 
right  of  the  party  in  whose  favor  it  was  made,  is  complete,  and  can  not 
be  affected  by  a  subsequent  war.  A  grant  of  a  faculative  right  or 
incorporeal  hereditament,  and  specifically  of  a  right  of  fishery,  from 
(jue  sovereign  to  another,  is  an  article  of  the  same  description.  .  .  . 
In  the  debates  in  Parliament  on  the  i)eace  of  Amiens,  Lord  Auckland 
^aid  :  '  He  had  looked  into  the  works  of  all  the  first  ])ublicists  on  these 
subjects,  and  had  corrected  himself  in  a  mistake  still  i)revalent  in 
the  minds  of  many,  who  state,  in  an  unqualified  sense,  that  all  treaties 
between  luitions  are  anmdled  by  war.  and  must  be  specially  renewed 
if  meant  to  be  in  force  on  the  return  of  peace.  It  is  true  that  treaties 
in  the  nature  of  compacts  or  concessions,  the  enjoyment  of  which  has 
l)een  int«'rrupted  by  the  war.  and  has  not  been  renewed  at  the  pacifi- 
cation, are  ren(lere<l  null  by  the  war.  But  compacts  not  interrupted 
by  the  course  and  effect  of  hostilities,  sucJi  an  the  regulated  exercise 


770  XATIONU.    .lURISDlOTIOX  :    TERRITORIAL    LIMITS.  [§163. 

of  (I  f>ih(ri/  on  the  rvspcrt'trc  ((xi-sts  of  the  Jx'Uigcreut  poicers,  the 
^tijiulated  ri<rlit  of  ciittinjr  wood  in  a  particular  district,  or  possessing 
r'nihts  of  f,  rritorij  Jun'tofon'  ceded  hj/  tnafij.  arc  certainly  not  de- 
ytro>/i(l  or  injured  In/  "'(//:'  .  .  .  The  Earl  of  Carnarvon — a  member 
of  the  <)|)position.  said,  in  the  same  del)ate.  .  .  .  '  AVar  does  not  abro- 
;rate  anv  ri<rht.  or  interfere  with  the  ritrht.  though  it  does  with  the 
e.\e!-cise,  but  sucli  as  it  professes  to  liti<rate  bv  war.'  "  The  same  posi- 
tion was  taki'H  by  Loi'd  Eldon  and  Mr.  Fox. 

Ml-.  .1.  g.  Adiinis.    I'lu"  Fislifiifs  .uul  Hip  Mississippi.  194-196.  197.  citing 
•_':;  IliiiisMnl.  I':irl.  History.   1147. 

Fisheries  "  on  the  coasts  and  l)ays  of  the  provinces  conquered  in 
America  from  France  were  acquired  by  the  common  sword,  and  min- 
gled blood  of  .Vmericans  and  Englishmen — members  of  the  same 
em|)ire.  wc.  with  them,  had  a  common  right  to  these  fisheries;  and,  in 
the  division  of  the  empire.  England  confirmed  our  title  without  con- 
(Htioii  oi-  limitation,  a  title  equally  irrevocable  with  those  of  our 
boundaries  or  of  our  inde])endence  itself." 

Not*'  to  sptH'cii  of  Ml-.   Hufiis   Kini;.   in   Senate.   April  ,'*..   1818.  Annals  of 
('out:.  l.">  Coui.'.  1  SPSS.  I.  ;'.:',.s. 

Mr.  ('.  A.  l\o(hiey.  wlio  had  been  Attorney-General  under  Mr. 
Jetl'eisou.  and  had  since  then  filled  important  public  offices,  was  con- 
sulted (l)eing  then  a  Seuator  of  the  Fnited  States)  by  Mr.  Monroe 
in  November,  isis.  on  the  fishery  (luestion.  From  his  reply  the 
following  passago  are  extracted: 

"  \A'hcii  the  treaty  of  Amiens,  in  1S02.  between  Great  Britain. 
France.  S|)ain.  and  Holland,  was  under  discussion  in  Parliament,  it 
wa>  objected  by  some  members  that  there  was  a  culpable  omission  in 
(•onse(|uence  (»f  the  non-renewal  of  certain  articles  in  former  treaties 
or  convontioiis  securing  to  England  the  gum  trade  of  the  river  Sene- 
gal and  the  right  to  cut  logwood  at  the  Hay  of  Honduras,  etc.  In 
:in>wrr  to  this  oitjcction  in  the  House  of  Lords  it  was  well  observed  by 
Lord  Auckland  'that  from  an  attentive  perusal  of  tlie  works  of  the 
publicist-,  he  had  corrected,  in  his  own  mind,  an  error,  still  prevalent, 
that  all  treaties  between  nations  are  annulled  l)y  a  war.  and  to  be  re- 
euforced  nuisl  be  specially  renewed  on  the  return  of  peace.  It 
wa>  true  llial  tr<'atie>  in  the  natui-e  of  compacts  or  concessions  the 
enjoyiiieiit  of  which  ha-  l)een  interrui)ted  by  the  war  are  thereby 
leiidered  null:  i»ut  comjiacts  which  were  not  impeded  by  the  course 
and  etl'ect  of  hostilities,  such  a>  the  rigJits  of  a  flxJiery  on  tlie  eoasts 
■  ,j  ,  ,f]i,  r  ,,f  fjir  Inlligi  i;  lit  /foirrr.s.  the  stipuliited  right  of  cutting 

'"'irw I   iij  a   particulai-  di>trict — compacts  of  this  nature  were  not 

itlect.d  l>y  war.  ...  It  ha<l  been  intimated  by  some  that  by  the  non- 
renewal <d'  the  treaty  of  17bt')  our  right  to  cut  logwood  might  be  dis- 


§  163.]  THE    NORTHEASTERN    FISHERIES.  777 

puted;  but  those  he  would  reuiiud  of  the  priuciple  already  explaiued, 
that  treaties  the  exercise  of  which  was  uot  impeded  l)y  the  war  were 
reestablished  with  peace.  .  .  .  He  did  uot  cousider  our  ritjhts  iu  ludia 
or  at  Houduras  iu  the  least  affected  l)y  the  uou-reuewal  of  certaiu 
.irticles  iu  foruier  treaties." 

••  Lord  Elleuborough  (chief  justice  of  the  court  of  King's  bench) 
"  felt  surprise  that  the  uou-renewal  of  treaties  should  have  been  urged 
as  a  serious  objection  to  the  definitive  treaty.  ...  He  was  aston- 
ished to  hear  men  of  talents  argue  that  the  j)ublic  law  of  P^urope 
was  a  dead  letter  because  certain  treaties  were  not  renewed." 

"  Lord  Eldon  (then  and  at  present  the  high  chancellor  of  England 
and  a  member  of  the  cabinet)  '  denied  that  the  rights  of  England  in 
the  Bay  of  Honduras  or  the  river  Senegal  were  affected  by  the  non- 
renewal of  treaties.' 

*'  In  the  House  of  Connnons.  in  reply  to  the  same  objection  made  in 
the  House  of  Lords,  it  was  stated  by  Lord  Hawkesburv.  the  jjresent 
Earl  of  Liverpool,  then  secretary  of  state  for  the  foreign  department 
and  now  prime  minister  of  England,  which  post  he  occupied  when 
tlie  treaty  of  Ghent  was  concluded,  *  that  to  the  definitive  treaty  two 
faults  had  been  imputed,  of  omission  and  counnission.  Of  the 
former  the  chief  Avas  the  non-renewal  of  certain  treaties  and  con- 
ventions. He  observed  the  principle  on  which  treaties  were  renewed 
was  not  understood.  He  affirmed  that  the  se})arate  convention  rela- 
tive to  our  East  India  trade,  and  to  our  right  of  cutting  logwood 
in  the  Bay  of  Honduras,  had  been  altogether  misunderstood.  Our 
sovereignty  in  India  was  the  result  of  conquest,  not  established  in 
consequence  of  stipulations  with  France,  but  acknowledged  by  her 
as  the  foundation  of  them;  our  rights  in  the  Bay  of  Honduras 
remained  inviolate,  the  privilege  of  cutting  logwood  being  unques- 
tional)ly  retained.  .  .  .  He  did  not  conceive  our  rights  in  India  or  at 
Honduras  were  affected  by  the  non-renewal  of  certain  articles  iu 
former  treaties." 

"  It  is  remarked  in  the  Annual  Register  that  Lord  ITawkesl)ury"s 
speech  contained  the  ablest  defense  of  the  treaty.  Th(^  chancellor 
of  the  exchecpier,  Mr.  Addington,  the  present  I^ord  Sidmouth,  and 
the  late  Mr.  Pitt  supported  the  same  principles  in  the  course  of  de- 
bate. I  presume  our  able  negotiators  at  (ihent  entertained  the  same 
opinions  when  they  signed  the  late  treaty  of  j)eace. 

•■  It  may  be  recollected  that  during  the  Revolutionary  war.  when 
the  British  Parliament  were  passing  the  act  to  prohibit  the  colonies 
from  using  the  fisheries,  some  members  urged  with  great  force  and 
eloquence  '  that  the  absurdity  of  the  bill  was  equal  to  its  crueltv  and 
injustice:  that  its  object  was  to  take  away  a  trade  from  the  colonies 
which  all  who  understood  its  nature  knew  thev  could  not  transfer  to 


778  NATIONAL    . I UHISDICTIOX  :    TERRITORIAL   LIMITS.  [§163. 

thcms«^lv('>:  tliat  (iod  and  naliiro  had  o^ivon  the  fisheries  to  New  and 
not  to  ( )ld  Kn<iland.'  ** 

Letter  of  ( ".  A.  Uodiiey.  Nov.  4.  ISIS.  Monroo  MSS.  Library  of  Congress. 

Ill  tlie  s.iiiie  letter  .Mr.  Kodiiey  s.iid:  •'  From  the  very  luoinent  the  T'nited 
States  Jn'CiUiie  a  sovereijrn  iH)\ver  they  were  clearly  entitled  to  an 
eiijuyiueiit  of  these  rii,'iits  |  to  the  lisheries]  hy  the  hiw  of  nations." 

See  Mcllviiine  /•.  ( 'oxe.  4  ("rMiith.  :2(»'.»:  John  Adams'  Works,  I.  292,  .'^43. 
;'.tM.  :!To.  .-tT.-!.  <;to:  II.  174:  III.  2(;."..  .".IS.  .SI!):  VII.  4."),  (5.')4 ;  VIII.  ,"), 
11.  4:v.»:   IX.  4S7.  7>c>:\:  X.  KM.  i:'.T.  Uio,  .•r)4.  4t>;i 

Followiiii;  the  letter  of  Mr.  Rodney  :ihov<'  (inoted.  Wharton,  in  his  Inter- 
nationa! Law  IHj^est.  111.  4."».  cites  the  rnlinj;  in  Sutton  v.  Sutton. 
This  case  arose  under  ,Vrt.  IX.  of  the  .lay  treaty  of  1794.  which  pro- 
vided that  citizens  of  the  one  country  ludding  lands  in  the  other 
should  continue  to  hold  them  ac<'ordinjr  to  the  nature  and  tenure  of 
their  respective  estates  and  titles,  and  that  neither  they  nor  their 
heirs  or  assijriis  should,  so  far  as  concerned  such  lands  and  the  legal 
remedies  incident  thereto,  he  regarded  as  aliens.  On  the  question 
whether  this  artich'  was  ahrogated  hy  the  war  of  1812  and  the  rights 
acquired  thereunder  destroyed.  Sir  .1.  Leach,  master  of  the  rolls,  in 
18.'i().  held  :  *'  The  relations  which  had  subsisted  between  Great  Brit- 
ain and  America  when  they  formed  one  empire  led  to  the  introduc- 
tion of  the  ninth  section  of  the  treaty  of  1794.  and  made  it  highly 
reasonable  that  the  subjects  of  the  two  jiarts  of  the  divided  emi»ire 
should,  iiotwithstaiidiiig  the  separation,  be  protected  in  the  mutual 
enjoyment  of  their  landed  property:  and  the  i)rivileges  of  natives 
being  reciprocally  given  not  only  to  the  actual  pos.sessors  of  lands 
but  to  their  heirs  and  assigns,  it  is  a  reasonable  construction  that  it 
was  the  intention  of  the  treaty  that  the  operation  of  the  treaty 
should  b(>  iH'riiiaiieiit.  and  not  deiiend  upon  the  continuance  of  a 
state  of  jieace."      (Sutton  r.  Sutton.  1  Rus.  &  M.  <>();{,  ()7.").) 

Wharton  suggests,  also.  "  that  for  the  same  reason  that  rights  to  fisheries 
are  not  extinguished  by  war.  fishing  boats  are  ordinarily  exempt  from 
seizure  in  war," 

"  'File  treaty  of  peace  ( 178:^)  did  not  grant  independence,  nor  did  it 
create  the  distinct  colonies.  at'ter\vards  States  in  the  Federal  Union  of 
the  I'nited  States,  nor  did  it  assi<rn  their  boundaries,  or  endow  them 
with  franchises  or  servitndes  siicli  as  their  rights  in  the  fisheries. 
'The  rehitions  which  had  subsisted  between  (Jreat  Britain  and 
America.'  to  ado|)t  the  hinaiia<re  of  the  Master  of  the  Rolls  in  Sutton 
'•.  Sutton.  1  Myh  ».<:  R..  ()7r».  •  when  tiiey  formed  one  empire,'  'made 
it  highly  reasonable  "  in  framing  the  treaty  of  peace. '  that  the  subjects 
of  the  two  j)arts  of  the  divided  em|)ire  should,  notwithstanding  the 
reparation,  lie  |)rotecte(l  in  the  mutual  enjoyment  '  of  certain  terri- 
torial rights.  It  was  certainly  'reasonable"  that  the  British  nego- 
tiators should  have  adojited  the  |)rinci|)l('  of  j)artiti()n  as  above  stated. 
'J1iey  reprex'iited  a  ministry  which,  though  afterwards  torn  asunder 
by  the  per^oual  contentions  of  Shelbiii-ne  and  Fo.x.  entered  into  power 
pledged  to  the  c(jneession  of  a  friendly  separation  between  the  two  sec- 


§  103.]  THE    NORTHEASTERN    FISHERIES,  779 

tions,  conceding  to  each  mutual  rights  of  territoriality.  Aside  from 
the  fact  that  such  a  separation,  carrying  with  it  a  retention  of  old 
reciprocal  rights.  Avas  far  less  galling  to  (Jreat  Britain  than  would  be 
the  admission  that  independence  was  wrung  from  her  by  conquest ; 
the  idea  of  a  future  reciprocity  between  the  two  nations,  based  on  old 
traditions,  as  moulded  by  modern  economical  liberalism,  was  pecul- 
iarly attractive  to  Shelburne.  by  Avhom,  as  prime  minister,  tiie  negotia- 
tions were  ultimately  closed.  (vSee  Franklin  MSS..  deposited  in 
Department  of  State;  liancroft's  P'ornuition  Fed.  Const.,  vol.  VI, 
ch.  1.)  On  this  basis  alone,  also,  could,  as  we  will  presently  see, 
British  subjects  be  secure  of  taking,  by  inheritance  or  j)urchase, 
landed  estates  in  the  United  States;  on  this  basis  alone  could  Great 
Britain  be  sure  of  a  common  enjoyment  of  the  lakes  and  of  the  Missis- 
sippi, whose  northern  waters  were  then  supposed  to  pass  in  part 
through  British  territory.  Hence,  unquestionably  imder  the  influ- 
ence of  this  view,  which  was  then  pressed  by  Great  Britain  at  least  as 
eagerly  as  it  was  by  the  United  States,  no  word  of  cession  or  grant 
was  introduced  into  the  preliminary  articles  of  peace  or  into  the 
treaty  of  i)eace  based  on  them.  So  far  from  this  being  the  case,  they 
adopt  the  phraseology  of  treaties  of  partition,  or,  as  the  Master  of  the 
Rolls  calls  it.  of  •  separation.'  The  two  sections  of  the  empire  agree 
to  separate,  each  taking  with  it  its  territorial  rights  as  previously  en- 
joyed :  and  among  these  rights,  that  which  was  most  important  to  the 
United  States,  and  was  most  conspicuously  before  the  conmiissioners, 
was  that  to  the  conunon  use  of  the  fisheries.  Applying  to  the  fisheries 
this  principle  of  i;)artition  or  of  '  separation.'  which  it  was  then  so 
essential  for  Great  Britain,  in  view  of  the  great  interests  held  by  her 
suljjects  in  the  Ignited  States,  to  assert,  the  commissioners  accepted,  as 
part  of  the  same  system,  the  position  that  the  United  States  held,  in 
connnon  with  (ireat  Britain,  the  fisheries  which  previously  it  had 
held,  in  entirety  with  (treat  Britain,  when  it  was  subject  to  titular 
British  suprenuicy." 

Note  of  Dr.  Wharton.  Wharton's  Int.  Law  Dig.  III.  4r>-41. 

The  same  author,  hi  his  International  Law  Digest,  2n(l  edition,  Appendix. 
§  ."'.o:!.  i)aj<t'  1)S:{.  citing  liiaine's  Twenty  Years  of  Conj^ress.  II.  CI  7.  and 
2  ("lialnicrs"  ()])inions  of  Eminent  Lawyers,  .'i44.  says:  "In  17U8  the 
law  otticcrs  of  the  Ci'own  i^avo  an  opinion  that  the  fishery  clauses  in  the 
treaty  of  Hi8(»  with  France  were  ])erman(*nt,  and  not  affected  by  .sub- 
sequent war."  The  oi)inion  here  referred  to  seems  to  he  that  which 
was  given  by  the  law  odicers  in  ITC").  as  to  the  duration  of  the  treaty 
between  England  and  France  of  November  1C»,  1<'.8<!,  this  being  the 
only  oi)inion  to  1k'  found  in  Chalmers  on  the  subject.  The  <iuestion 
that  was  luider  consideration  related  particularly  to  the  fifth  and 
sixth  clauses  of  the  treaty,  which  iirohlhitcil  the  subjects  of  the  one 
party  to  trade  and  fish  in  places  [assessed  by  the  other  in  America, 
and  provided  for  the  coutiscation  of  ships  fouud  violating  tlie  pro- 


7S(>  NATIONAL    .TFRISDICTION  :    TERRITORIAL    LIMITS.  [§  1^. 

hiliition.  It  appears  that  the  Attorney-General  and  Solicitor-Gen- 
era 1.  Ityder  and  Murray,  pive  an  opinion.  April  7.  IT.")."},  that  the 
treaty  was  then  in  force.  It  also  appears  tliat  the  Attoniey-General 
and  Soli(ilor-(;ent'rai.  Norton  and  I>e  (irey.  February  12.  1765.  held 
tliat  the  treaty  was  n<»t  then  in  force;  thouj;h  Sir  James  Marriott, 
Advo<:ite-<;eneral.  exjtressetl  the  opiiuon.  February  15,  17(55,  that  it 
was  ■■  a  subsistinjr  tn'aty.  not  oidy  because  it  is  revivt^l  by  a  stronj: 
iniitlication  of  words  and  facts,  but  for  tliat  it  may  be  understood  to 
subsist  because  it  never  was  al)rogattHl."'  (t'hahners'  Opinions  of 
Eminent  Lawyers.  Am.  ed.  1S5S.  j.p.  t;L'5.  r>2H-t;2!t.  t;:W. ) 

"  The  pivvaleiit  ojjiiiion  is  that  a  a\  ai'  between  two  sovereign.s  does 
not  I)V  itself  vacate  such  provisions  in  treaties  theretofore  existing 
l)etween  them  as  rehite  to  priniarv  national  j)rero«:atives.  such,  for 
instance,  as  national  independence,  houndarv,  or  other  integral  ap- 
purtenances of  sovereignty.  As  snch  appnrtenances  of  the  sov- 
ereignty of  the  New  England  States  the  fisheries  are  to  be  classed. 
The  war  of  lsl2.  therefore,  no  more  vacated  the  title  of  the  United 
States  to  its  common  share  in  the  northeastern  fisheries  than  it  vacated 
the  independence  of  the  States  or  the  bonndaries  which  separated 
their  territories  from  those  of  (Ireat  Britain." 
Wharton.  Int.  Law  IHtr.  111.  4.".. 

••  It  i>  worthy  of  notice  that  the  claim  of  British  settlers  to  the  nse 
of  the  coast  and  waters  of  the  Belize  for  the  pnrpose  of  cutting  and 
shii)i)ing  logwood  and  mahogany,  which  claim  was  based  on  a  remote 
informal  grant  from  Spain  when  sovereign  of  those  shores,  has  always 
been  a>serted  by  (ireat  Britain  to  have  adhered  to  the  British  Crown 
nnartected  by  intermediate  wars  between  (ireat  Britain  and  Spain. 
See  Lord  IIawkes])tirv's  speech,  (pioted  above  by  Mr,  Rodney." 
Wharton.  Int.  Law  Dijr.  111.  4.5. 

2.    (  ONVK.NTION     OK    1818. 

^    K'4. 

October  20.  isls.  All)ert  (ialiatin  and  Kichard  Rush  concluded  the 
convention,  the  lir-t  article  of  which  reads  as  follows: 

"AiMK  i.K  I.  Whereas  diHcrences  have  arisen  respecting  the  lil)erty 
claimed  by  the  Tnited  States  for  the  inhai)itants  thereof,  to  take,  dry, 
and  cure  lisli  on  certain  coasts,  bays,  harbours,  and  creeks  of  His 
l)iitannic  Majesty's  dominions  in  America,  it  is  agreed  between  the 
high  contracting  parties,  that  the  inhabitants  of  the  said  Ignited 
State-  -li;ill  have  forever,  in  common  with  the  subjects  of  His  Bri- 
laiiuic  Maj<-ty.  the  lil)erty  to  take  fish  of  every  kind  on  that  part  of 
tin-  -i.iitlieiii  cna-t  of  Xewfoiindhuid  which  extends  from  Cape  Ray 
1"  the  Raineau  I-lands,  on  the  western  and  northern  coast  of  Xew- 
f"UiMllaii(l.  from  the  -aid  Cape  Hay  to  the  Quirpon  Islands,  on  the 


164.] 


THE    NORTHEASTERN    FISHERIES. 


781 


!-hores  of  the  Magdalen  Islands,  and  also  on  the  coasts,  bays,  har- 
bours, and  creeks  from  Mount  Joly  on  the  southern  coast  of  Labrador, 
to  and  through  the  Streights  of  Belleisle  and  thence  northwardly 
indefinitely  along  the  coast,  without  i)rejudice  however,  to  any  of  the 
exclusive  rights  of  the  Hudson  Bay  Company :  And  that  the  Amer- 
ican fishermen  shall  also  have  liberty  forever,  to  dry  and  cure  fish  in 
any  of  the  unsettled  bays,  harbours,  and  creeks  of  the  southern  part 
of  the  coast  of  Newfoundland  hereabove  described,  and  of  the  coast  of 
Labrador;  but  so  soon  as  the  same,  or  any  portion  thereof,  shall  be 
settled,  it  shall  not  be  lawful  for  the  said  fishermen  to  dry  or  cure 
fish  at  such  portion  so  settled,  without  jjrevious  agreement  for  such 
purpose  with  the  inhabitants,  proprietors,  or  possessors  of  the  ground. 
And  the  United  States  hereby  renounce  forever,  any  liberty  hereto- 
fore enjoyed  or  claimed  by  the  inhabitants  thereof,  to  take,  dry,  or 
cure  fish  on.  or  within  three  marine  miles  of  any  of  the  coasts,  bays, 
creeks,  or  harbours  of  his  Britannic  ^lajesty's  dominions  in  America 
not  included  within  the  above-mentioned  limits;  Provided,  however, 
that  the  American  fishermen  shall  be  admitted  to  enter  such  bays  or 
harbours  for  the  purpose  of  shelter  and  of  repairing  damages  therein, 
of  purchasing  wood,  and  of  obtaining  water,  and  for  no  other  purpose 
whatever.  But  they  shall  be  under  such  restrictions  as  may  be  neces- 
sary to  prevent  their  taking,  drying  or  curing  fish  therein,  or  in  any 
other  manner  whatever  abusing  the  privileges  hereby  reserved  to 
them." 

Comparing  the  stipulations  of  the  treaty  of  1788  and  of  the  con- 
vention of  1818  we  have  the  following  results; 


Treaty  of  1783. 
tide  III. 


Ar- 


il. Liberty. 


)nveiition  of  1818. 
Article  I. 


Right  to  take  fish — 

1.  On  the  Banks  of  Newfoundland: 

2.  In  the  G-iilf  of  St.  Lawrence:  and 

3.  At  all  other  places  in  the  sea. 
jl.  To  take  fish  on  the  British  coasts  generally. 
1 2.  To  dry  and  cure  fish  in  any  of  the  unsettled 

hays,  harbors,  and  creeks  of  Nova  Scotia, 
Magdalen  Islands,  and  Labrador. 
Right  remains  as  under  treaty  of  1 783. 

^1.  To  take  fish  renounced,  except  as  to  (a)  the 
southern  coast  of  Newfoundland  from  Cape 
Ray  to  the  Rameau  Islands:  (/))  the  west- 
ern and  northern  coasts  of  Newfoundland 
from  Cape  Ray  to  the  Quirpon  Islands;  (c) 
the  shores  of  the  Magdalen  Islands,  and  (d) 
the  coast  of  Labrador  from  Mount  Joly 
eastwardly  and  northwardly  indefinitely. 
To  dry  and  cure  fish  renounced,  except  as  to 
(a)  the  unsettled  bays,  harbors,  and  creeks 
of  the  southern  coast  of  Newfoundland  from 
Cape  Ray  to  the  Rameau  Islands,  and  (b) 
the  coast  of  Labrador. 


II.  Liberty. . 


782  NATIONAL  jurisdiction:   territorial  limits.       [§164. 

••  NoitluT  side  yielded  its  coiivictioiis  to  the  reasoning  of  the  other. 
This  being  exhatistecK  there  was  no  resource  k'ft  with  nations  disposed 
to  peace  hut  a  conii)roniise.  (Jreat  Britain  grew  willing  to  give  up 
something.  The  United  States  consented  to  take  less  than  the 
whol<>.  .  .  .  The  most  difficult  part  of  our  task  was  on  the  question  of 
permanence.  Hritain  would  not  consent  to  an  exi)ress  clause  that 
a  future  Mar  was  not  to  abrogate  the  rights  secured  to  us.  We 
inserted  the  word  forerer,  and  drew  up  a  paper  to  be  of  record  in  the 
negotiation,  purporting  that  if  the  convention  should  from  anv 
cause  to  be  vacate(h  all  anterior  rights  were  to  revive.  ...  It  was 
bv  01/ r  act  that  the  Tnited  Slates  rcnoiniccd  the  right  to  the  fisheries 
not  guaranteed  to  them  by  the  convention.  .  .  .  We  deemed  it 
proi)er  under  a  three-fokl  view:  1.  to  exclude  the  implication  of  the 
fisheries  being  secured  to  us  l)eing  a  new  grant ;  2,  to  place  the  rights 
secured  and  renounced,  on  the  same  footing  of  permanence;  3,  that 
it  might  expressly  ai)pear.  that  our  renunciation  was  limited  to  three 
miles  from  the  coast.'' 

Rush's  KesidiMico  at  the  Court  of  London.  Philadelphia.  18:3:?.  pp.  398-400 
See.  also.  Am.  State  rai)ers.  For.  Kel.  IV.  :!S0-4(Mi. 

See  Mr.  (Jallatin  to  Mr.  Adams.  Nov.  (>.  1818.  2  Oallatin's  Writings,  82; 
Mr.  Rush  to  Mr.  Monroe.  Oct.  L'l'.  1818.  MS.  Monroe  Papers. 

'"  T\\v  principle  asserted  by  the  American  plenipotentiaries  at 
(rhent  has  been  still  asserted  and  maintained  through  tAvo  long  and 
arduous  negotiations  with  (ireat  Britain,  and  has  j)assed  the  ordeal 
of  minds  of  no  inferioi-  ability.  It  has  terminated  in  a  new  and  sat- 
isfactory arrangement  of  the  great  interest  connected  with  it,  and  in 
a  substantial  admission  of  the  principle  asserted  by  the  American 
plenipotentiaries  at  (Thent." 

Mr.   .1.   (^   Adams.  The  Fisheries  and  the  Mississippi.  !)7.  98.      See,  also, 

id.  109. 
Lyman.  Dip.  of  the  Fnited  States.  II.  88.  says  :  "  The  most  imi)ortant  matter 
adjusted  .-it  tiiis  negotiation  |(if  1818 1 was  the  tishorics.  The  position 
assumed  at  (Jhent.  that  tho  fishory  rights  and  liherties  were  jiot  abro- 
gated liy  WAV.  was  again  insisted  on.  and  those  portions  of  the  ooa.st 
fisheries  relinciuished  on  this  occasion  were  renounced  h.v  express 
provision,  fully  imi»lying  that  the  whole  right  was  not  considered  a 
new  grant." 
Mr.  J.  C.  Pancroft  l>;ivis.  in  his  'l'rt>aty  Notes,  says:  ".John  Quincy 
Adams  .  .  .  contended  that  the  treaty  of  ITs:;  was  not  'one  of  those 
which  .  .  .  can  he  considered  as  annulled  by  a  sul)se(|uent  war  be- 
tween the  same  ]iarties.'  Lord  Piatliui-st  replied:  "To  a  position  of 
this  novel  nature  (Jreat  P.ritain  cannot  accede.  ..."  During  the  ne- 
gotiations which  followeil  (ireat  P>i'itain  never  abandoneil  that  ix)si- 
tion.  and  the  Fnited  States  may  lie  said  to  have  accjuiesced  in  it.  By 
it  they  secured  the  exclusion  of  Creat  Britain  from  the  Mississippi, 
the  free  and  open  navigation  of  which  was  gr.mted  to  the  subjects 
of  (Jreat  liritain  forever  by  the  treaty  which  Lord  Bathurst  set 
aside."     (Fnited  States  Treaty  Volume.  1T7G-18ST,  1237.) 


§  164.]  THE    NORTHEASTERN    FISHERIES.  783 

On  June  14,  1819,  an  act  was  passed  by  the  Imperial  Parliament 
to  carry  the  foregoing  article  into  effect.     It  closely 
"^^^"isiq^"  followed  the  language  of  the  article,  and  provided 

regulations  and  penalties  for  its  enforcement."  After 
this  act  went  into  effect  several  seizures  were  nuide,  and  from  18"24  to 
1826  more  or  less  correspondence  took  place  in  regard  to  three  vessels 
which,  after  being  seized  in  the  Bay  of  Fundy,  were  rescued  by  a 
band  of  armed  men  from  Eastport,  Maine.^ 

From  that  time  down  to  1836  little  trouble  seems  to  have  occurred. 

But  in  that  year  the  legislature  of  Xova  Scotia  passed 

NovaScotian  "hov-  ,  "       i  n     i  j-i      u  i  •  i  r  i  r  •   u 

an  act,  commonlv  called  the     hovering  act,    bv  which 
eriug  act.  '  '       .  •  .      .  'p         ' 

the  hovering  of  vessels  within  three  miles  of  the  coasts 
or  harbors  was  sought  to  be  prevented  by  various  regulations  and 
penalties;''  and  subsequently  claims  were  asserted  to  exclude  fisher- 
men from  all  bays  and  even  from  all  waters  within  lines  drawn  from 
headland  to  headland,  to  forbid  them  to  navigate  the  Gut  of  Canso, 
and  to  deny  them  all  privileges  of  traffic,  including  the  purchase  of 
bait  and  supplies  in  the  British  colonial  ports.  From  1839  down  to 
1854  there  were  numerous  seizures,  and  in  1852  the  home  govern- 
ment sent  over  a  force  of  war  steamers  and  sailing  vessels  to  assist 
in  patrolling  the  coast. 

In  support  of  their  contention  as  to  bays,  the  British  authorities 

invoked  the  words  of  the  convention  of  1818 — the 
ftuestion     as    to    renunciation  of  the  liberty  to  take,  dry,  or  cure  fish 
*^^'  within    three    marine    miles    of    the    "  coasts,    bays, 

creeks,  or  harbors,''  etc.  It  was  argued  that  this  renunciation 
embraced  all  bays  eo  nomine^  no  matter  what  their  extent.  Against 
this  claim  the  United  States  protested,  and  in  1845  the  British  Gov- 
ernment yielded  the  point  with  regard  to  the  Bay  of  Fundy,**  but 
declared  that  the  concession  applied  to  that  bay  only.*'  In  a  paper, 
dated  at  the  Department  of  State,  July  6,  1852,  and  published  in  the 


a  Sabine's  Fisheries.  220 ;  0  Brit.  &  For.  State  Tapers,  040. 

6  See  message  of  I'resident  Monroe  of  Fel).  10,  1825,  as  to  "  captvu-e  and  deten- 
tion by  British  armed  vessels  of  American  fishermen."  H.  Doc.  03.  18  Cong.  2 
sess. ;  Am.  State  Papers,  For.  Rel.  V.  075;  S.  Ex.  Doc.  100,  32  Cong.  1  sess.  5,  11, 
54,  55-58.  As  to  the  Newfoundland  fishery,  see  Am.  State  Papers,  For.  Rel.  \. 
548,  570-580. 

c  S.  Ex.  Doc.  100.  .32  Cong.  1  sess.  108. 

(iLord  Aberdeen,  Foreign  Secretary,  to  Mr.  Everett,  Am.  min.,  March  10, 
1845,  S.  Ex.  Doc.  100,  32  Cong.  1  sess.  135. 

pLord  Aberdeen.  For.  Sec,  to  Mr.  F^verett.  Am.  min..  April  21.  1845,  S.  Ex. 
Doc.  100,  32  Cong.  1  sess.  153.  See  Mr.  Everett,  min.  to  England,  to  Mr. 
Upshur,  Sec.  of  State.  Aug.  1.5,  1843.  MSS.  Dept.  of  State,  a  brief  extract  being 
printed  in  S.  Ex.  Doc.  100,  32  Cong.  1  sess.  120;  and  Mr.  Everett,  min.  to  Eng- 
land, to  Mr.  Calhoun,  Sec.  of  State,  March  25,  1845.  MSS.  Dept.  of  State, 
extracts  being  printed  in  S.  Ex.  Doc.  100,  32  Cong.  1  sess.  134. 


784  NATIONAL   JURISDICTION  :    TERRITORIAL    LIMITS.  [§  164. 

Boston  Courier  on  the  19tli  of  the  same  month,  Mr.  Webster,  who 
was  then  Secretary  of  State,  remarked,  with  reference  to  the  use  of 
the  term  ""  bays/'  that  "  it  was  undoubtedly  an  oversight  in  the  conven- 
tion of  1818  to  make  so  hirge  a  concession  to  England;"  but  he 
added  that  he  did  not  agree  that  the  British  construction  of  the  term 
was  "  conformable  to  the  intentions  of  the  contracting  parties." " 
T-iter  in  the  same  year  Lord  Malmesbury  stated  that  the  British 
(lovernment  were  prepared  to  maintain  that  -the  "  relaxation " 
granted  in  1845,  Avith  reference  to  the  Bay  of  Fundy,  was  reasonable 
and  just,  but  he  abstained  from  entering  into  any  discussion  as  to  the 
interpretation  of  the  term  ''  bay,'*  declaring  that  it  was  his  intention 
to  leave  the  matter  where  it  was  left  in  1845,  any  further  discussion 
of  the  question  being  a  matter  of  negotiation  between  the  two  Gov- 
'.^rnments.''  The  difference  between  the  two  Governments  was  that 
the  United  States  claimed  the  right  to  enter  the  Bay  of  Fundy  under 
the  convention.  Avhile  Great  Britain  admitted  it  under  the  "  con- 
cession "  of  1845.'' 

As  has  l^een  seen,  the  renunciation  in  the  convention  of  1818  of  the 
right  to  take.  dry.  or  cuiv  fish  within  three  marine  miles  of  the 
"•  coasts,  bays,  creeks,  or  harbors,*'  is  followed  by  the  proviso  that  the 
American  fishermen  may  enter  "  such  bays  or  harbors  '*  for  the  pur- 
]5oses  of  shelter,  repairing  damages,  purchasing  wood,  and  obtaining 
water.  In  the  debates  in  the  Senate  in  the  summer  of  1852,  Mr.  Cass. 
in  a  speech  of  the  3d  of  August,  after  commenting  upon  the  fact 
tliat  there  ai'e  "  l)ays.**  such  as  the  Bay  of  Biscay  and  Baffins  Bay. 
which  are  in  i-eality  open  seas,  proceeded  to  maintain  that  the  "  bays  " 
of  the  convention,  as  shown  l)v  the  association  of  the  word  ''  harbors," 
in  connection  with  shelter  and  repair  of  damages,  were  the  small 
bodies  of  water  into  which  fishing  vessels  were  accustomed  to  run  for 
those  puri)oses.  "  That  such  was  the  understanding  of  our  negotia- 
tors is.*'  said  Mr.  Cass.  '"  rendered  clear  by  the  terms  they  employ  in 
their  rejiort  upon  this  subject.  They  say :  '  It  is  in  that  point  of  view 
that  the  privilege  of  entering  the  ports  for  shelter  is  useful,'  etc. 
Here  the  word  '  ports '  is  used  as  a  descriptive  word,  embracing  both 
the  bays  and  harbors  within  which  shelter  may  be  legally  sought,  and 
shows  the  kind  of  bays  contemplated  by  our  framers  of  the  treaty. 
And  it  is  not  a  little  curious  that  the  legislature  of  Nova  Scotia  have 
applied  the  same  meaning  to  a  simihir  term.  An  act  of  that  Prov- 
ince was  passed  March  12.  1836,  with  this  title:  'An  act  relating  to 

1  Sabine's  Fisheries,  'HV.i-2(i~). 

^  Lord  Malmesbury.  For.  Sec  to  Mr.  Crampton,  Min.  to  United  States,  Aug. 
10.  1845.  Sen.  Confid.  No.  4.  Feb.  28,  1853.  special  session,  6-7. 

''  Mr.  Everett.  Sec.  of  State,  to  Mr.  Ingei-soll.  min.  to  England,  Dec.  4.  1852, 
messajre  of  Pres.  Fillmore,  Feb.  28,  1853,  Sen.  Coutid.  No.  4,  special  session, 
12,  15. 


§  164.]  THE    NORTHEASTERN    FISHERIES.  785 

the  fisheries  in  the  Province  of  Nova  Scotia  and  the  coasts  and  har- 
bors thereof/  which  act  recognizes  the  convention,  and  provides  for 
its  execution  under  the  authority  of  an  imperial  statute.  It  declares 
that  harbors  shall  include  bays,  ports,  and  creeks.  Xothingr  can  show 
more  clearly  their  opinion  of  the  nature  of  the  shelter  secured  to  the 
American  fishermen." " 

The  same  view  was  expounded  by  Mr.  Hamlin.^'' 
It  seems  that  it  formerly  was  the  custom  among  fishermen  to  speak 
of  the  whole  of  the  Gulf  of  St.  Lawrence  as  the  Bay  of  Chaleur.^ 

Related  to  the  question  as  to  bays,  but  not  identical  with  it,  was  the 
The     "headland"    "  headland  "  theory,  by  which  name  was  designated 
theory.  the  pretension  that  the  three  marine  miles  from  the 

"  coasts,  bays,  creeks,  or  harbors  *"  should,  not  only  in  the  case  of 
bodies  of  water  known  as  bays,  but  also  along  other  parts  of  the 
coast,  be  measured  from  a  line  drawn  from  headland  to  headland. 
In  an  opinion  given  to  Lord  Palmerston  in  IS-tl,  and  afterwards  pub- 
lished at  Halifax,  the  law  officers  of  the  Crown.  Messrs.  Dodson  and 
Wilde,  held  that  the  American  fishermen  had  no  right  to  fish  in  the 
l)ays  of  Nova  Scotia ;  and  they  stated  that  they  based  this  opinion  on 
the  fact  that  the  term  ''  headland  "  was  *'  used  in  the  treaty  "'  for  the 
purpose  of  ''  excluding  the  interior  of  the  bays  of  the  coast."'  As 
the  term  "  headland  "  is  not  used  in  the  convention  of  1818,  the  law 
officers  seem  to  have  mistaken  a  sentence  in  the  ex  parte  case  made  u]) 
at  Halifax,  in  which  the  word  "*  headland  "  appears,  for  an  extract 
from  the  treaty.'^ 

'•  The  schooner  Washhu/fon  was  seized  by  the  revenue  schooner 
Case  of  the  J>'/i'(,  Cai)tain  I)arl)v,  while  fishing  in  the  Bay  of 
"Washington."  Fundy  ten  miles  from  the  shore,  on  the  10th  of  May, 
1843,  on  the  charge  of  violating  the  treaty  of  1818.  She  was  carried 
to  Yarmouth,  Nova  Scotia,  and  there  decreed  to  be  forfeited  to  the 
Crown  by  the  judge  of  the  vice-admiralty  court,  and  with  her  stores 
ordered  to  be  sold.  The  owners  of  the  Washington  claim  for  the 
value  of  the  vessel  and  appurtenances,  outfits, -and  damages,  $2,48'^, 
and  for  eleven  years"  interest,  $1,038,  auiounting  together  to  $4.1'21. 
By  the  recent  reciprocity  treaty,  happily  concluded  between  the 
[Jnited  States  and  Great  Britain,  there  seems  no  chance  for  any  future 
disputes  in  regard  to  the  fisheries.  It  is  to  be  regretted  that  in  that 
treaty  provision  was  not  made  for  settling  a  few  small  claims,  of  no 


o  Cone  CJlohe,  .■'>2  Coiif?.  I  sess..  Appendix.  ]».  .S!»r>. 

&  Id.  900. 

''.Mr.  Foster.  United  States  aKont.  Doeunients  and  I'roccedin.irs  of  tlie  Halifax 
Connnission,  II.  ir)!>0. 

''.Mr.  Everett.  S(m-.  of  State,  to  Mr.  InKersoll.  niin.  to  England,  Dec.  4,  1852, 
Sen.  Confid.  No.  4.  Feb.  2S.  1S.~)8.  special  session.  1(}-17. 

H.  Doc.  551 50 


7Sf>  nationaTj  jurtsdiction  :   territorial  i.tmtts.        [§  164. 

iinj)()rtan('o  in  a  pecuniary  sense.  Avhicli  Avere  then  existing,  but  as  they 
liave  not  been  settled  they  are  now  brougfht  before  this  commission. 

'•  The  Wa.<ihin(/ton^  fishing  schooner,  was  seized,  as  before  stated,  in 
the  Bay  of  Fundy,  ten  miles  from  the  shore,  otf  Annapolis,  Nova 
Scotia.  .  .  . 

"  The  (juestion  turns,  so  far  as  relates  to  the  treaty  stipulations,  on 
the  meaning  given  to  the  word  '  bays  '  in  the  treaty  of  1783.  By  that 
treaty  the  Americans  had  no  right  to  dry  and  cure  fish  on  the  shores 
and  bays  of  Newfoundland,  but  they  had  that  right  on  the  coasts,  bays, 
harbors,  and  creeks  of  Nova  Scotia ;  and  as  they  must  land  to  cure 
fish  on  the  shores,  bays,  and  creeks,  they  Avere  evidently  admitted  to 
the  shores  of  the  bays.  etc.  By  the  treaty  of  1818  the  same  right  is 
granted  to  cure  fish  on  the  coasts,  bays,  etc.,  of  Newfoundland,  but  the 
Americans  relinquished  that  right  and  the  right  to  fish  within  three 
miles  of  the  coasts,  bays,  etc.,  of  Nova  vScotia.  Taking  it  for  granted 
that  the  framers  of  the  treaty  intended  that  the  word  '  bay  '  or  '  bays  ' 
should  have  the  same  meaning  in  all  cases,  and  no  mention  being  made 
of  headlands,  there  appears  no  doubt  that  the  Washinr/fon,  in  fishing 
ten  miles  from  the  shore,  violated  no  stipulations  of  the  treaty. 

''  It  was  urged  on  behalf  of  the  British  Government  that  by  coasts, 
bays,  etc.,  is  understood  an  inuiginary  line,  draAvn  along  the  coast 
from  headland  to  headland,  and  that  the  jurisdiction  of  Her  Majesty 
extends  three  marine  miles  outside  of  this  line;  thus  closing  all  the 
bays  on  the  coast  or  shore,  and  that  great  body  of  water  called  the  Bay 
of  Fundy  against  Americans  and  others,  making  the  latter  a  British 
bay.  This  doctrine  of  headlands  is  new,  and  has  received  a  proper 
limit  in  the  convention  betAveen  France  and  Great  Britain  of  2d 
August  1830,  in  Avhich  '  it  is  agreed  that  the  distance  of  three  miles 
fixed  as  the  general  limit  for  the  exclusiAe  right  of  fishery  upon  the 
coasts  of  the  tAvo  countries  shall,  Avith  respect  to  bays,  the  mouths  of 
Avhich  do  not  exceed  ten  miles  in  Avidth,  be  measured  from  a  straight 
line  draAvn  from  headland  to  headland.' 

"  The  Bay  of  Fundy  is  from  (>.")  to  75  miles  Avide  and  180  to  1  40 
miles  long.  It  has  several  bays  on  its  coasts.  Thus  the  Avord  bay,  as 
applied  to  this  great  body  of  Avater,  has  the  same  meaning  as  that 
applied  to  the  Bay  of  Biscay,  the  Bay  of  Bengal,  oA'er  Avhich  no  nation 
can  haA'e  the  right  to  assume  the  sovereignty.  One  of  the  headlands 
of  the  Bay  of  Fundy  is  in  the  United  States,  and  ships  bound  to  Passa- 
maquoddy  nuist  sail  through  a  large  space  of  it.  The  island  of  Grand 
Menan  (British)  and  Little  Afenan  (American)  are  situated  nearly 
on  a  line  from  headland  to  headland.  These  islands,  as  represented 
in  all  geogra])hies,  are  situate  in  the  Atlantic  Ocean.  The  conclusion 
is.  therefore,  in  my  mind  irresistible  that  the  Bay  of  Fundy  is  not  a 
British  bay,  nor  a  bay  Avithin  the  meaning  of  the  Avord  as  used  in  the 
treaties  of  1783  and  1818. 


§  164.]  THE    NORTHEASTERN    FISHERIES.  787 

"  The  owners  of  the  Washington,  or  their  legal  representatives,  are 
therefore  entitled  to  compensation,  and  are  hereby  awarded  not  the 
amonnt  of  their  claim,  which  is  excessive,  but  the  sum  of  three  thou- 
sand dollars,  due  on  the  15th  January  1855." 

Bates,  luiipire.  coiivtMition  between  the  T'nited  States  and  Great  Britain 
of  February  8,  18.")r5.  The  whole  of  the  judgment  is  here  given  except 
two  paragraphs  in  which  the  stipuh\tion  of  178:^  and  1818  are  sum- 
niariztxl.  These  paragrajjs  may  be  seen  in  Moore,  Int.  Arbitrations, 
IV.  4.-U2,  434.3;  also,  in  S.  Ex.  Doc.  103.  .34  Cong.  1  sess.  184. 

Hornby,  British  commissioner,  maintained  that  the  seizure  was  justified, 
both  on  the  ground  that  the  Bay  of  Fundy  was  an  indentation  of  the 
sea.  over  which  (Jreat  Britain  might  by  virtue  of  the  law  of  nations 
claim  <>x<-lusive  jurisdiction,  and  also  on  the  ground  that.  l»y  a  fair 
construction  of  the  convention  of  1818.  the  Bay  of  Fundy  was  one  of 
the  "  bays "  in  whifh,  by  that  convention,  the  Fnited  States  had 
renounced  the  right  to  take  fish. 

Upham.  the  American  commissioner,  denied  both  these  contentions,  citing 
Vattel.  I.  ch.  20,  ss.  282.  283;  Grotius,  II.  ch.  2.  sec.  3;  1  Kent's 
Connn.  462 ;  Sabine's  Report  on  the  Fisheries.  282,  204. 

"'The  umpire,  appointed  agreeably  to  the  provisions  of  the  con- 
Case  of  the   "Ar-    vention  entered  into  between  Great  Britain  and  the 
gus."  United  States  on  the  8th  of  February  1853  for  the 

adjustment  of  claims  by  a  mixed  commission,  having  been  duly  noti- 
fied by  the  connnissioners  under  the  said  convention  that  they  had 
been  unable  to  agree  upon  the  decision  to  be  given  Avith  reference  to 
the  claim  of  the  owners  of  the  schooner  Arr/i/s,  of  Portland.  ITnited 
States,  Doughty,  master,  against  the  British  Oovernment;  and  hav- 
ing carefully  examined  and  considei'ed  the  i)apers  and  evidence  pro- 
duced on  the  hearing  of  the  said  claim  and  having  conferred  with 
the  said  commissioners  thereon,  herel)y  reports  that  the  schooner 
Aryu.s,  55  tons  burden,  was  captured  on  the  4th  August  1844.  while 
fishing  on  St.  Ann's  Bank,  by  tlie  revenue  cruiser  Sylph,  of  Lunen- 
burg, Xova  Scotia,  commanded  by  William  Carr — Phillip  Dod, 
seizing  master — carried  to  Sydney,  where  she  was  stripped  and  every- 
thing belonging  to  her  sold  at  auction.  At  the  time  of  the  captuco 
the  Af(/iis  was  stated  on  oath  to  have  been  :28  miles  from  the  nearest 
land — Ca])e  Smoke.  There  was  therefore  in  this  case  no  violation  of 
the  treaty  of  1818.  I  therefore  award  to  the  owners  of  the  Arr/t/s,  or 
their  legal  repr(>scntatives.  for  the  loss  of  their  vessel,  outfits,  stores, 
and  fish,  the  sum  of  two  thousand  dollars  on  the  15th  January  1855." 

F.ates,  mnpire,  December  23.  18.14.  conunission  under  the  convention  be- 
tween tlu'  I'nited  States  and  Great  Britain  of  February  8,  18.13,  Moore, 
Int.  Arbitration.s,  IV.  4344. 

The  All/IIS  was  seized  because  found  tishing  within  a  line  drawn  from 
headland  to  headland,  from  Cow  F>ay  to  Gape  North,  on  the  northeast 
side  of  the  island  of  Cape  Breton.  (S.  Ex.  Doc.  113,  50  Cong.  1 
sess.  .10.) 


NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  164. 

In  another  case  submitted  to  Mr.  Bates  as  umpire — the  case  of  the 
J'allds — it  was  alleged  that  the  vessel  was  chased  by  a  revenue  cruiser 
from  off  C'hittican  Hay.  Aug.  4.  1840.  for  forty  or  fifty  miles,  cap- 
turtnl.  and  sent  to  Sydney,  where  she  was  detained  six  weeks,  and 
then  released.  The  case  was  disnnssed  by  Mr.  Bates  for  want  of 
evidence,  and  the  nature  of  the  seizure  is  not  stated.  (Moore,  Int. 
.\rbitrations.  IV.  4:'>4.").) 

On  May  14.  INTO,  tlu'  •'  headland  "  doctrine  having  been  reasserted  by  Mr. 
I'eter  .Mitchell,  iirovincial  minister  of  marine  and  fisheries,  Lord 
Granville.  British  foreign  secretary,  on  June  0.  1870,  telegraphed  to 
the  governor-general  as  follows :  "  Iler  Majesty's  Government  hoi)es 
that  the  United  States  fishermen  will  not  be.  for  the  j»resent.  pre- 
vented from  fishing,  except  within  three  nnles  of  land  or  in  bays 
which  are  less  than  six  miles  broad  at  the  mouth."  (Proceedings  of 
Halifax  Comm.  I.  1.").) 

Replying,  on  .Inly  2:',.  188t>.  to  a  protest  by  Mr.  Bayard  of  June  14,  188<!, 
against  a  warning  alleged  to  have  been  given  to  United  States  fishing 
vessels  by  a  Canadian  customs  official  not  to  fish  within  lines  drawn 
from  headland  to  headland  from  Cai)e  Canso  to  St  Esprit,  and  from 
North  Cajie  to  East  Point  of  Prince  Edward  Island.  Lord  Rosebery 
stated  that  no  instruction  to  that  effect  had  been  issued  by  the  Cana- 
dian govermnent.  It  ai)peared.  said  Lord  Rosebery,  that  the  collector 
of  Canso  had.  in  conversation  with  the  master  of  a  fishing  vessel, 
"expressed  the  oi)ini<)n  that  the  headland  line  ran  from  Cranberry 
Island  to  St.  Esprit,  but  this  was  wholly  unauthorized."  (For.  Rel. 
1.8Sti.  408.) 

In  Septemlier.  ISOC.  some  American  fishing  vessels  were  warned  not  to 
fish  on  a  shoal  known  as  Fisherman's  Bank,  in  the  <iulf  of  St.  Law- 
rence, near  the  entrance  to  Northumberland  Strait,  between  the  east- 
ern part  of  Prince  Edward  Island  and  the  northern  part  of  Nova 
Scotia,  at  a  distan(e  of  nearly  7  miles  from  Cape  Bear,  the  nearest 
land.  In  rejdy  to  an  inquiry  of  the  United  States  consul  at  Char- 
lottetown.  the  Canadian  minister  of  marine  and  fisheries  stated, 
0<t.  2.  181m;.  that  Fisherman's  Bank  had  always  been  claimed  as 
Canadian  waters,  liut  that  no  new  orders  had  Iteen  given  in  relation 
to  it.  Referring  to  this  statement.  ^Ir.  Olney  said  that  the  claim  of 
•  jurisdiction  over  Fisherman's  Bank  seemed  to  lie  based  on  the  "  head- 
lands "  contention,  since  the  ])lace  could  be  included  within  the 
Canadian  jiuMsdiction  only  liy  drawing  a  line  across  the  open  ap- 
proaches to  the  Strait  of  Nortlnnnberland  from  East  Point,  on  Prince 
Edward  Island,  to  Cape  St.  (ieorge,  in  Nova  Scotia,  a  distance  of  35 
miles.  Referring  to  the  correspondence  of  ISSd.  Mr.  Olney  said  that 
he  desired  to  renew  the  re(iu«'st  then  jtresented  by  Mr.  Bayard  and 
ac(juiesc(Nl  in  by  the  British  (Jovermnent  that  if  any  such  orders 
as  were  alleg(Hl  had  been  issued  they  should  be  revoked:  and  he 
added  that  if  it  slumld  ajiiK'ar  that  the  claim  ]>ut  forth  rested  on  an 
assumption  that  the  open  waters  of  the  Gulf  of  St.  Lawrence  were 
"bays,  creeks,  or  harbors"  in  the  sens»>  of  the  convention  of  1818,  he 
must  be  i»ermitted  to  renew  Mr.  P.ayard's  expression  of  regret  "at 
any  such  unfortunate  n-vival  of  a  (|uestioii  which  has  long  since  been 
settled  betw«H'n  the  United  St.ites  an<l  (ireat  Britain."  (Mr.  Olney, 
S<H-.  of  State,  to  Sir  J.  Pauncefote.  Brit,  amb.,  Dec.  17,  1896,  MS. 
notes  to  Gr.  Br.  XXIII.  510.) 


§  164.]  THE    XORTHEASTERN    FISHERIES.  78^ 

July  IT),  1830,  ^Ir.  Primrose.  United  States  consul 
at  Pictou.  Xova  Scotia,  complained  to  the  secretary 
of  that  province  that  American  vessels  bound  to  that  port  had  been 
fired  at  and  brought  to  at  the  Strait  of  Canso  and  compelled  to  pay 
light  dues.  He  inquired  whether  the  collectors  were  authorized  to 
kny  the  duties  on  American  vessels  not  bound  to  any  ])ort  or  place 
within  the  strait,  and  added :  "  The  imposition  of  any  tax  by  the 
])rovince  of  Xova  Scotia  upon  American  vessels  engaged  in  the  pros- 
ecution of  the  fisheries  using  that  passage  in  franxifii.  would  appear 
to  deprive  it  of  the  character  of  constituting  a  portion  of  the  high 
seas."  ^ 

The  colonial  secretary  replied  that  the  collectors  had  been  in- 
structed not  to  demand  light  duty  from  vessels  })ound  to  Pictou, 
unless  they  came  to  anchor  within  the  strait :  but  he  said  that  the  lieu- 
tenant-governor could  not  "  admit  the  character  given  to  the  Gut 
of  Canso  as  a  part  of  the  high  seas  until  recognized  by  some  authori- 
tative decision,  as  the  correctness  of  its  application  to  that  narrow 
passage  lying  entirely  between  the  lands  of  this  province  may  be 
questionable,  more  especially  as  an  open  communication  around  the 
eastern  end  of  the  island  of  Cape  Breton  is  to  be  found  on  the  high 
seas  to  the  Gulf  of  St.  Lawrence,  or  any  other  point  to  which  the 
Strait  of  Canso  can  l)e  made  subservient."  ^ 

This  claim  was  mentioned  by  Mr.  Forsyth,  Secretary  of  State,  in 
an  instruction  relating  to  the  fisheries,  addressed  to  ]Mr.  Stevenson, 
^Vinerican  minister  in  London,  under  date  of  Feb.  20,  1841.  Tn 
this  instruction  Mr.  Forsyth,  after  pointing  out  certain  oppressive 
features  of  the  Nova  Scotian  act  of  183(5  and  the  regulations  made 
thereunder,  said  :  "  It  will  also  l)e  ])roper  to  notice  the  assertion  of 
the  provincial  legislature,  that  the  Strait  of  Canso  is  a  '  narrow  strip 
of  water  c<)m])letely  within  and  dividing  several  counties '  of  the 
province,  and  that  our  use  of  it  is  in  violation  of  the  convention  of 
1818.  That  strait  separates  Xova  Scotia  from  the  island  of  Cape 
Preton.  which  Avas  not  annexed  to  the  })rovince  until  1820.  In  1818, 
Cape  Breton  was  enjoying  a  government  of  its  own  entirely  distinct 
from  Xova  Scotia,  the  strait  forming  the  line  of  demarcation  be- 
tween them,  and  being  then,  as  now,  a  thoroughfare  for  vessels  pass- 
ing into  and  out  of  the  Gulf  of  St.  Lawrence.  The  union  of  the  two 
colonies  cannot  be  admitted  as  vesting  in  the  province  the  right  to 
close  a  i^assage  which  has  been  freely  and  indisputably  used  by  our 
citizens  since  the  year  1T83,  and  it  is  impossible  to  conceive  how  the 
use.  on  our  part,  of  this  right  of  passage,  common  it  is  l)elieved  to  all 

a  Mr.  Priuirose.  U.  S.  consul,  to  the  Hon.  Sir  H.  D.  (Jeorge.  provincial  secre- 
tary, .July  1.1.  18:31).  S.  Ex  Doc.  100.  .S2  Cong.  1  sess.  73-74. 

6  Sir  R.  I).  George,  provinfial  secretary,  to  Mr.  Primrose,  consul  at  Pictou, 
Nov.  [),  ISUD,  S.  Ex.  Doe,  lUO,  32  Coug.  1  sess.  81. 


790  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  164. 

other  nations,  conflicts  either  with  the  letter  or  the  spirit  of  our 
treaty  obligations."' " 

Mr.  Stevenson  duly  connnunicated  to  Lord  Palmerston  the  purport 
of  his  instructions,  including  the  part  embraced  in  the  foregoing  quo- 
tation.'' Not  long  afterwards  the  British  (xovernment  submitted  to 
the  law  t)fficers  of  the  Crown  a  series  of  questions,  embraced  in  the 
leport  adopted  bv  the  House  of  Assembly  of  Xova  Scotia,  to  which 
Mr.  Forsyth  had  leferred  Avhen  he  spoke  of  the  "  assertion  "'  of  the 
provincial  legislature.  In  the  scries  of  (piestions  there  was  the 
following: 

"4.  Have  American  vessels,  fitted  out  for  the  fishery,  a  right  to 
j>ass  through  the  (lut  of  Canso,  which  they  cannot  do  without  coming 
within  the  prescribed  limits,  or  to  anchor  there  or  to  fish  there:  and 
is  casting  l)ait  to  lure  fish  in  the  track  of  the  vessels  fishing,  within  the 
meaning  of  the  convention?  *' 

August  '10.  1841,  the  law  officers  replied: 

•■  4.  By  the  treaty  of  1S18  it  is  agreed  that  American  citiz.^ns  should 
have  the  liberty  of  fishing  in  the  (xulf  of  St.  Lawrence,  within  certain 
defined  limits,  in  connnon  with  British  subjects;  and  such  treaty  does 
not  contain  any  words  negativing  the  right  to  navigate  the  passage  of 
the  (iut  of  Canso,  and  therefore  it  may  be  conceded  that  such  right 
of  navigation  is  not  taken  away  by  that  convention;  but  we  have  now 
attentively  considered  the  course  of  navigation  to  the  (lulf  by  Cape 
Breton,  and  likewise  the  capacity  and  situation  of  the  passage  of 
Canso.  and  of  the  British  dominions  on  either  side,  and  we  are  of 
opinion  that,  independently  of  treaty,  no  foreign  country  has  the 
right  to  use  or  navigate  the  passage  of  Canso;  and  attending  to  the 
tei'ms  of  the  convention  relating  to  the  lilx'rty  of  fishery  to  l>e  enjoyed 
by  the  Americans,  we  are  also  of  opinion  that  that  convention  did 
not  either  expressly  or  by  implication  concede  any  such  right  of 
using  or  navigating  the  ]>assage  in  (piestion.  AVe  are  also  of  opinion 
that  casting  l)ait  to  lure  fish  in  the  track  of  any  American  vessels 
navigating  the  passage  would  constitute  a  fishing  within  the  negative 
terms  of  the  convention."' 

It  does  not  ap})ear  that  this  document  was  ever  officially  connnuni- 
cated to  the  Lnited  States.''  although  the  (Jovernment  of  Nova  Scotia 
continued  to  agitate  the  <|uestion  of  prohibiting  the  passage  of  tlie 

a  Mr.  Forsyth.  Sec.  of  State,  to  .Mr.  Stevenson,  niin.  to  Enj.'land.  No.  80.  Feb.  20. 
1841.  S.  Ex.  IK)c.  KMl.  :;2  (  onj,'.  1  sess.  KM;,  lo,s.  .Mr.  Forsyth  inclosed  with  his  in- 
struction a  copy  of  the  journal  -and  proieedinys  of  tlie  house  of  assembly  of 
Nova  Scotia  at  its-session  of  18.'V.t-4o. 

''  Mr.  Stevenson,  nun.  to  Enjiland.  to  Lord  I'ahnerston,  Sec-,  of  State,  .March 
•-'7.  1S41.  S.  Ex.  Doc.  KXt.  32  Conj;.  1  scss.  li:',. 

Sai.incs  I{(>iK»rt  on  tlie  Fisheries,  22S,  22'.t,  2:!(). 

'i  Fur.  ltd.  lbT;{,  111.  2&i. 


§  165.]  THE    NORTHEASTERN    FISHERIES.  791 

strait."     The  subject,  however,  was  dropped  after  the  conehisioii  of 
the  reciprocity  treaty  of  1854. 

Ill  1870  Mr.  Jackson,  United  States  consul  at  Halifax,  four  years 
after  the  termination  of  that  treaty,  said:  '*  It  has  been  intimated 
that  still  further  restrictions  will  be  imposed  upon  our  fishermen,  and 
that  an  attempt  will  be  made  to  exclude  them  from  the  Strait  of 
C'anso.  .  .  .  The  Strait  of  Canso  for  more  than  a  century  has 
been  open  as  a  public  highway  to  the  vessels  of  all  friendly  nations."  '' 

The  question  of  the  fislieries  was  again  set  temporarily  at  rest  by 
the  treat}^  of  AVashington  of  May  8,  1871. 

The  unratified  treaty  of  February  15,  1888,  contained  the  following 
clause:  "Art.  IX.  Nothing  in  this  treaty  shall  interrupt  or  affect  the 
free  navigation  of  the  Strait  of  Canso  by  fishing  vessels  of  the 
United  States.'' " 

3.  Reciprocity  Treaty,  1854. 

§    165. 

With  a  view  to  adjust  the  various  questions  that  had  arisen  concern- 
ing the  convention  of  1818,  the  British  Government  in  1854  sent  Lord 
Elgin  to  the  United  States  on  a  special  mission,  and  on  June  5,  1854, 
he  concluded  with  Mr.  Marcy,  avIio  was  then  Secretary  of  State, 
a  treaty  in  relation  to  the  fisheries,  and  to  commerce  and  navigation. 
By  the  first  article  of  this  treaty  it  was  provided  that,  in  addition 
to  the  liberty  secured  to  the  United  States  fishermen  by  the  conven- 
tion of  October  20,  1818,  of  taking,  curing,  and  drying  fish  on  certain 
of  the  coasts  of  British  Xorth  America,  the  inhabitants  of  the 
United  States  should  have,  in  common  with  the  subjects  of  His 
Britannic  Majesty,"  the  liberty  to  take  fish  of  every  kind,  except 
shell-fish,  on  the  seacoasts  and  shores,  and  in  the  baj^s,  harbors,  and 
creeks  of  Canada,  Xew  Brunswick,  Xova  Scotia,  Prince  P^dward's 
Island,  and  of  the  several  islands  thereunto  adjacent,  without  being 
restricted  to  any  distance  from  the  shore,  Avith  permission  to  land 
upon  the  coasts  and  shores  of  those  colonies  and  the  islands  thereof, 
and  also  upon  the  Magdalen  Islands,  for  the  purpose  of  drying  their 
nets  and  curing  their  fish;  provided  that,  in  so  doing,  they  do  not 
interfere  with  the  rights  of  private  property,  or  with  British  fisher- 
men in  the  peaceable  use  of  any  part  of  the  said  coast  in  their  occu- 
pancy for  the  same  purpose.'' 

The  liberty  thus  defined  applied  solely  to  the  sea  fishery.  The 
salmon  and  shad  fisheries,  and  all  fisheries  in  rivers  and  the  mouths 
of  rivers,  were  expressly  reserved  for  British  fishermen. 

a  Sabines  Report,  2(>:\  2S7-290. 

b  For.  Rel.  1S70,  4:!(». 

c  S.  Ex.  Doc.  li:i,  'ji)  Cong.  1  sess.  135. 


7V>'2  NATIONAL    JURlSDirTION  :    TERRTtORlAL   LIMITS.  [§  165. 

On  the  other  hand,  it  was  j)r()vi(UMl  by  the  second  article  of  the 
treaty,  that  British  subjects  shonhl  have,  in  common  Avith  the  citizens 
of  the  Ignited  States.  "  the  liberty  to  take  fish  of  every  kind,  except 
>hell-fish.  on  the  eastern  sea  coasts  and  shores  of  the  Ignited  States 
north  of  the  :U»th  parallel  of  north  latitude,  and  on  the  shores  of  the 
-everal  i>lands  thereunto  adjacent,  and  in  the  l)ays.  harbors,  and 
creeks  of  the  said  sea  coast  and  shores  of  the  United  States  and  of  thi' 
said  islands."  on  precisely  the  same  conditions,  including  the  reser- 
vation of  the  salmon,  shad,  and  all  rivei'  fisheries,  as  were  made  with 
respect  to  the  reciprocal  liberty  secured  to  the  American  fishermen 
l»y  tlu'  })rect'din<r  article." 

Hy  the  third  article  of  the  treaty,  jjrovision  was  made  for  recip- 
rocal free  trade  between  the  Ignited  States  and  the  British  cohmies 
in  North  America  in  various  articles,  being  the  growth  and  produce 
of  either  country:  and  by  the  fourth  article,  certain  stipulations 
were  established  as  to  the  navigaticni  of  the  River  St.  Lawrence  and 
Lake  Michigan,  and  the  use  of  such  Canadian  canals  as  formed  part 
<d'  the  water  ct)mmunication  between  the  (ireat  Lakes  and  the  Atlan- 
tic Ocean. 
Termination  of        This  treaty  came  into  operation  on  March  1(».  1855. 

reciprocity     It  was  terminated  March  IT.  l.StU),  in  accordance  with 

treaty.  a   notice  given  by  tlie   Lnited   States  in  conformity 

with  its  j)rovisions.''     From   18()()  to  18()1)  the  Canadian  government 

granted  liciMises  to  American  fishing  vessels,  at  Hrst 

at  the  rate  of  50  cents  and  Hnally  at  the  rate  of  $'2  a 

ton  for  the  enjoyment  during  each  season  of  the  same  liberties  as  they 

iiad  exercised  under  the  reci|)rocity  treaty.'' 

In  Iscs.  however,  the  Dominion  Paidiament  passed  an  "  act  respect- 
Dominion  legisla-     ing  fishing  by  foreign  vessels,"  which  was  amended  in 
tion-  ls70.  and  which  i)ractically  reenacted.  with  increaseil 

stringency   of   regulations   and    penalties,   the    Nova    Scotian   statute 
of  183().'' 


n  F(»r  the  inoccediiijis  uf  the  coimiiissioners  who  decided  upon  and  denoted 
llie  reserved  jthices  under  the  treaty,  see  Moore.  Int.  Arbitrations.  I.  -12f;— 104, 
svliere  the  awards  are  uiven.     The  maps  are  in  tlie  Deitartnient  of  State. 

'' l>\\>.  Cor.  IStM.  I.  !t:;.  1S4.  -'."lit.  Sec.  in  tiiis  rehition.  a  i)aniphiet  entitled 
"  Letter  to  tlic  Hon.  William  II.  Seward.  Secretary  of  State,  in  answer  to  one 
from  him  on  the  resolution  of  the  Senate  as  to  the  relations  of  the  Fnited 
States  with  the  Hritisii  i»rovinces  .ind  tlie  actual  condition  of  the  question  of  the 
fisheries,"  Ity  ]■].  II.  Dcrity.  .Tannary.  1SC)7.  Washinjiton.  ISCT.  .'>0  jip.  with  an 
niipendi.v  of  L'4."i  jip.  containini^  a  ]ireliminary  rejtort  on  the  reciprocity  treaty 
of  IS.-, I. 

■  Kill.  Cor.  ISCC.  I.  lia.-, :  Papers  relating  to  the  Treaty  of  Washington,  VI.  2.S(! ; 
.Mr.  Hunter.  Acting  Sec.  of  State,  to  Mr.  Thornton.  Brit,  min.,  .June  12,  1868,  MS, 
Notes  to  (;r.  r,r.  XIV.  'MVA. 

'n-<n\  lie],  187U,  408,  414. 


Position  of  the  Im- 


§  165.J  THE    NORTHEASTERN    FISHERIES.  793 

In  1870  the  system  of  granting  licenses  was  discontinued,"  and  a 

copy  of  a  letter  addressed  by  the  secretary  of  state 

for   the   colonies   to   the    lords   of   the    admiralty   on 

April  12,  18()(j,  defininj;  the  views  of  the  British  Gov- 
ment.  . 

ernment  as  to  the  construction  of  the  convention  of 
1818,  was  communicated  to  the  United  States.  In  this  letter  it  was 
said  that  Her  Majesty's  (roverinnent  were  clearly  of  the  opinion 
that  by  the  convention  of  181S  the  Ihiited  States  had  "  renounced 
the  right  of  fishing-,  not  only  within  three  miles  of  the  colonial  shores, 
but  within  three  miles  of  a  line  drawn  across  the  mouth  of  any  Brit- 
ish bay  or  creek."  But  the  (Question,  What  is  a  British  bay  or  creek? 
was  one  that  had  been  the  occasion  of  diffi(;ulty  in  foi'uier  times.  The 
letter  said : 

'•  It  is,  therefore,  at  present  the  Avish  of  Her  Majesty's  Govern- 
ment neither  to  concede  nor  for  the  present  to  enforce  any  rights 
which  are  in  their  nature  open  to  any  serious  question.  Even 
Ijefore  the  conclusion  of  the  reciprocity  treaty  Her  Majesty's  Gov- 
ernment had  consented  to  forego  the  exercise  of  its  strict  right  to 
exclude  American  fishermen  from  the  Bay  of  Fundy,  and  they  are 
of  opinion  that  during  the  present  season  that  right  should  not  be 
exercised  in  the  body  of  the  Bay  of  Fundy,  and  that  American 
fishermen  should  not  be  interfered  with,  either  b}^  notice  or  other- 
wise, unless  they  are  found  within  three  miles  of  the  shore,  or  within 
three  miles  of  a  line  drawn  across  the  mouth  of  a  bay  or  creek  which 
is  less  than  ten  geogra])hical  miles  in  width,  in  conformity  with  the 
arrangement  made  with  France  in  18oi).  .  .  .  Her  Majesty's  Gov- 
ernment do  not  desire  that  the  prohibition  to  enter  British  bays 
should  be  generally  insisted  on,  except  when  there  is  reason  to  ap- 
jjrehend  some  substantial  invasion  of  British  rights.  And  in  par- 
ticular they  do  not  desire  American  vessels  to  be  })revented  from 
navigating  the  Gut  of  Causo  (from  which  Her  Majesty's  Govern- 
ment are  advised  they  may  lawfully  be  excluded),  unless  it  shall 
appear  that  this  permission  is  used  to  the  injury  of  colonial  fisher- 
men, or  for  other  improper  objects."  '' 

It  appears  that  instructions  were  given  in  1870  not  to  seize  any 

vessel  unless  it  were  evident,  and   could   be   clearly 
Instructions    of  i      i i      ,     , i  /«•  p    ^   i  •  i       i    i 

proved,   that  the   oftense   ot   hshing   had    l)een   com- 
mitted  and   the   vessel    itself  captured    within    three 
miles  of  land.''     In  view  of  the  claims  previously  made  by  the  British 

«  For.  Rel.  1S70,  408.  Soo  circular  of  Mr.  Boutwell.  Secretary  of  the  Treas- 
ury, May  IG,  1870,  as  to  the  discontinuance  of  licenses  and  the  inshore  fisheries. 
For.  Rel.  1870,  411.  See,  also.  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Fairchild,  Sec. 
of  Treasury,  April  1,  1880,  159  MS.  Dom.  Let.  082. 

6  For.  Rel.  1870,  419-420. 

c  Id.  421. 


794  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  165. 

(Jovornniont.  the  United  States  recotriiized  in  the  tenor  of  these  in- 
structions "  a  generous  spirit  of  amity.""     But  subsequently,  during 
the   same   season,    it    was    learned    that   the   colonial 

Action  of  colonial    .j^j^i^^j^.i^ips  wore  asserting  the  right  to  exclude  Ameri- 
authorities.  .  ■ 

can  fishermen  from  entering  the  ports  of  the  Domin- 
ion, either  for  the  purpose  of  obtaining  bait  or  supplies  or  of  trans- 
shipj)ing  their  cargoes  of  fish  under  the  s3'Stem  of  bonded  transit 
whidi  had  long  been  in  existence.'' 

"  During  the  conferences  which  preceded  the  negotiation  of  the 
convention  of  ISfS,  the  British  commissioners  })roposed  to  expressly 
exclmle  tlie  fishermen  of  the  United  States  from  '  the  privilege  of 
cari'ving  on  tratle  with  any  of  his  Britannic  Majesty's  subjects  resid- 
ing within  the  limits  assigned  for  their  use;  *  and  also  that  it  should 
not  be  •  lawful  for  the  vessels  of  the  United  States  engaged  in  said 
fishery  to  have  on  board  any  goods,  wares,  or  merchandise  whatever, 
except  such  as  nuiy  be  necessary  for  the  })rosecution  of  their  voyages 
to  and  from  the  said  fishing  grounds.  And  any  vessel  of  the  United 
States  which  shall  contravene  this  regulation  may  be  seized,  con- 
dennied,  and  confiscated  with  her  cargo.' 

"  This  proposition,  which  is  identical  with  the  construction  noAV 
l)ut  upon  the  language  of  the  convention,  was  emphatically  rejected 
by  the  American  commissioners,  and  thereupon  was  abandoned  by  the 
British  })lenipotentiaries,  and  Article  I,  as  it  stands  in  the  convention, 
was  substituted."' 

I'lvsident  (Jrant.  Seeoiul  Annual  Message,  Deo.  .5.  1870. 

This  article  is  criticised  by  Pomeroy.  in  an  article  on  the  Northeastern 
Fisheries,  Am.  Law  Kev.  V.  (1870-71).  412  et  seq. 

The  allusion  made  by  Trcsident  Grant  to  the  negotiations  of  the  conven- 
tion of  1818  refers  to  the  exchange  of  certain  propositions,  leading  iiii 
to  the  conclusion  of  tiie  convention.  In  the  article  first  proposed  by 
the  .\nierican  ]»lenipotentiari<'s  on  September  17,  1818,  the  renuncia- 

a  For.  Hel.  1870,  4l'l-41'-_>. 

^  For.  Hel.  1.S70.  42'J— 484.  "  Information  furnislied  by  varicms  United  States 
consuls  in  ("ai:ada  shows  that  for  a  munl)er  of  years  past  our  fishing  vessels 
have  been  permitted  to  carry  merchandise,  enter  at  the  custom-houses,  and  buy 
supplies  other  than  wood  and  w;>t«M'.  but  tliat  this  practice  lias  recently  been 
stopiietl."  (.Vrtifie  by  I'rof.  romeioy  on  the  Northeastern  Fisheries,  Am.  Law 
Rev.  187(^71.  V.  .•'.S'.».  411.  citing  II.  Ex.  Doc.  1,  41  Cong,  .'i  sess.  422-4:M.) 

'•Anticipating  tliat  an  attemjit  may  possibly  l)e  made  by  the  Canadian  authori- 
ties in  the  <-oniing  st'ason  to  rei)eat  their  mineighborly  acts  toward  our  fisher- 
men. I  recommend  you  to  confer  upon  the  Executive  the  power  to  suspend,  by 
proclamation,  the  operation  of  the  laws  authorizing  the  transit  of  goods,  wares, 
and  merchandise  in  bond  across  the  territory  of  the  United  States  to  Canada; 
:Mid.  further,  should  such  an  extreme  measure  l)ecome  necessary,  to  suspend 
tlie  ojieration  of  any  laws  whereby  the  vessels  of  the  Dominion  of  Canada  are 
permitted  to  enter  the  waters  of  the  United  States."  (President  Grant,  Second 
Annual  Message,  1«7U.; 


165.]  THE    NORTHEASTERN    FTSHERTES.  .       795 

tion  of  the  right  to  fish  within  three  marine  miles  of  the  coasts,  bays, 
t-reelis.  and  harbors,  was  followed  by  the  proviso  that  the  American 
fishermen  should  l>e  ix'rmitted  to  enter  those  places  "  for  the  purpose 
only  of  obtaining  shelter,  wood,  water,  and  bait,  but  under  such 
restrictions  as  may  be  necessary  to  jirevent  their  drying  or  curing 
fish  therein,  or  in  any  other  manner  abusing  the  privilege  hereby 
reserved  to  them."  The  British  plenipotentiaries  on  October  G 
presented  a  counter  project,  in  which,  after  stipulating  that  United 
States  fishing  vessels  should  have  the  liberty  to  enter  bays  and  har- 
bors "  for  the  purpose  of  shelter  or  of  repairing  damages  therein, 
and  of  imrchasing  wood  and  obtaining  water,  and  for  no  other  ]»ui"- 
pose,"  and  that  "  all  vessels  so  resorting  to  the  said  bays  and  har- 
bors "  should  be  "  under  such  restrictions  as  may  be  necessary  to 
prevent  their  taking,  drying,  and  curing  fish  therein,"  they  proposed 
to  declare  that  it  was  "  further  well  understood  "  that  the  "  liberty 
of  taking,  drying,  and  curing  fish  "  inshore,  where  it  was  grantetl  by 
the  article,  shoidd  "  not  be  construed  to  extend  to  any  i)rivilege  of 
carrying  on  trade  with  any  of  Ilis  Britannic  Majesty's  subjects  resid- 
ing within  the  limits  hereinbefore  assigned  to  the  use  of  the  fisher- 
men of  the  United  States  for  any  of  the  purposes  aforesaid;"  that, 
in  order  the  more  effectually  to  guard  against  smuggling,  it  should 
"  not  be  lawful  for  the  vessels  of  the  United  States  engaged  in  the 
said  fishery  to  have  on  board  any  goods,  wares,  or  merchandise  what- 
ever, except  such  as  may  be  necessary  for  the  prosecution  of  their 
voyages  to  and  from  the  said  fishing  grounds,"  and  that  any  United 
States  vessel  which  contravened  this  regulation  might  be  seized,  con- 
dennied.  and  confiscated,  together  with  her  cargo.  On  the  7th  day  of 
October  the  American  plenipotentiaries  replied  that,  whatever  extent 
of  fishing  ground  might  be  secured  to  American  fishermen,  they  were 
not  prepared  to  accept  it  on  a  tenure  or  on  conditions  different  from 
those  on  which  the  whole  had  i)reviously  been  held,  and  that  making 
vessels  liable  to  confiscation,  in  case  any  articles  not  wanted  for 
carr.ving  on  the  fishery  should  be  found  on  board,  would  expose  the 
fishermen  to  endless  vexations.  The  British  plenipotentiaries,  in 
turn,  on  October  i;>,  presented  a  draft  of  an  article  whicli  was 
accepted  by  the  American  plenipotentiaries,  and  which  was  textually 
embodied  in  the  first  article  of  the  convention.  It  differs  little,  so 
far  as  the  i)resent  discussion  is  concerned,  from  the  article  submitted 
by  the  American  plenipotentiaries  on  the  17th  of  September,  except 
in  the  omission  of  the  word  "bait."  The  United  States  subseiiuently 
contended  that  the  "bait"  referred  to  was  bait  for  cod.  which  was 
then  caught  in  the  waters  in  (piestion,  and  that  it  was  not  intended 
to  prevent  the  jiurchiise  in  British  ports  of  bait  for  the  mackerel 
fishery,  which  did  not  begin  in  those  waters  till  several  years  after- 
ward. (Papers  relating  to  the  Treaty  of  Washington,  VI.  2S()-2S2. ) 
"The  right  of  our  fishermen  under  the  treaty  of  ISIS  did  not  extend  to 
the  procurement  of  distinctive  fishery  supplies  in  Canadian  ports  and 
harbors:  and  one  item  supposed  to  be  essential,  to  wit,  bait,  was 
plainly  denied  them  by  the  explicit  and  definite  words  of  the  treaty 
of  ISIS,  empliasl/.ed  by  the  course  of  the  negotiation  and  express 
decisions  which  pi-eceded  the  conclusion  of  that  treaty."  (Message 
of  President  Cleveland  to  the  Senate,  Feb.  2U,  1SS8,  S.  Ex.  Doc.  113, 
50  Cong.  1  sess.  130.) 


7^)(>  "       NATIONAL    JURISmCTTON  :    TERRTtOHTAL   LIMITS.  [§  165. 

XovciuIk'i-  -J'k  1S70.  the  Aiiiorioan  fishing  vessel  White  Favn  was 
seized  at  Head  Harbor,  New  Brunswick,  for  having 

Bait  question.  ,,|)|.,i,n.,i  there  a  quantity  of  herrings  to  Ix*  used  as 
bait  for  fishing.  She  was  taiven  to  St.  John,  where  she  was  after- 
wards HbelhMl  for  forfeiture.  Judgment  was  rendered  by  Judge 
Ha/en,  in  the  viee-adiuiraUy  court.  He  cited,  first,  the  Imperial 
statute.  .')!)  (Jro.  III.  ca]).  ^iS.  which  declared  that  if  any  foreign  ves- 
sel, or  |)('rs()n  on  board  thereof,  "shall  be  found  to  be  fishing,  or  to 
have  been  fishing,  or  preparing  to  fish  within,  such  distance  [three 
marine  niih's|  of  the  coast,  siu-h  vessel  and  cargo  shall  be  forfeited;  " 
and  also  the  Dominion  statute  of  1808  (31  Vic.  c.  01),  as  amended  by 
the  statute  of  ISTO  (;W  Vic.  c.  15).  which  enacts:  "If  such  foreign 
vessel  is  found  fishing,  or  preparing  to  fish,  or  to  have  been  fishing  in 
British  waters,  within  three  marine  miles  of  the  coast,  such  vessel, 
lier  tackle,  etc.,  and  cargo,  shall  be  forfeited."  With  reference  to 
these  statutes  Jiulge  Hazen  said:  "  I  think,  before  a  forfeiture  could 
l)e  inciu-red,  it  nuist  be  shown  that  the  })reparations  were  for  an  ille- 
gal fishing  in  British  waters.  .  .  .  The  construction  sought  to  be  put 
upon  the  statutes  l)y  the  Crown  officers  would  api)ear  to  be  thus:  'A 
foreign  vessel,  being  in  liritish  waters  and  purchasing  from  a  British 
subject  any  article  which  nuiy  be  used  in  })rosecuting  the  fisheries, 
without  its  being  shown  that  such  article  is  to  l)e  used  in  illegal  fishing 
in  British  waters,  is  liable  to  forfeiture  as  prei)aring  to  fish  in  Brit- 
ish waters.'  I  cannot  adoi)t  such  a  construction.  I  think  it  harsh 
and  unreasonable  and  not  warranted  by  the  words  of  the  statutes. 
It  would  subject  a  foreign  vessel,  which  might  be  of  great  value,  as  in 
the  present  case,  to  forfeiture,  with  her  cargo  and  outfits,  for  pur- 
chasing (while  she  was  pursuing  her  voyage  in  British  waters,  as  she 
lawfully  might  do,  within  three  miles  of  oiu"  coast)  of  a  British  sub- 
ject any  article,  howexcr  small  its  value  (a  cod  line  or  net,  for 
instance),  without  its  being  shown  that  there  was  any  intention  of 
using  such  ai-ticles  in  illegal  fishing  in  British  waters  before  she 
reached  the  fishing  gi-ouiul  to  which  she  might  legally  resort  for  fish- 
ing und<'r  the  terms  of  the  statutes.  I  construe  the  statutes  simply 
thu>:  If  a  foi-eign  vessel  is  found.  1st.  having  taken  fish;  2d,  fishing, 
although  no  li>h  have  been  taken:  iVl.  pre|)aring  to  fish,  /,  e.,  with  her 
crew  arranging  her  nets,  lines,  and  fishing  tackle  foi-  fishing,  though 
not  actually  ai)plied  to  fishing,  in  British  waters,  in  either  of  those 
cases  s|)ecifie(l  in  the  statutes  the  forfeiture  attaches.  I  think  the 
words  •  i)re|)aring  to  fish  '  were  introduced  for  the  purpose  of  pre- 
venting the  esca|)e  of  a  foreign  vessel  which,  though  with  intent  of 
illegal  fishing  in  British  waters,  had  not  taken  fish  or  engaged  in 
li-hing  by  setting  nets  and  lines,  but  was  seized  in  the  very  act  of  put- 
ting out  her  lines,  nets,  etc.,  into  the  water,  and  so  preparing  to 
li>h.  .  .  .     Taking  this  view  of  the  statutes,  I  am  of  the  opinion  that 


§  165.]  THE    NORTHEASTERN    FISHERIES.  797 

the  facts  disclosed  by  the  affidavits  do  not  furnish  legal  grounds  for 
the  seizure  .  .  .  and  do  not  make  out  a  prima  facie  case  for  condem- 
nation. ...  I  may  add  that  as  the  construction  I  have  put  upon  the 
statute  dili'ers  from  that  adopted  by  the  Crown  officers  of  the  Domin- 
ion, it  is  satisfactory  to  know  that  the  judgment  of  the  Supreme  Court 
may  be  obtained  by  information,  filed  there." 

Documents  and  Proceedings  of  the  Halifax  Commission,  III.  3.381. 
It  does  not  appear  that  further  action  in  the  case  was  talcen. 

In  June.  1870.  the  American  fishing  vessel  ■/.  H.  Nifkerf<on  Avas 
seized  in  the  North  Bay  of  Ingonish,  Cape  Breton,  on  the  charge  of 
having  entered  to  procure  bait  and  of  having  procured  or  purchased 
it.  She  was  libelled  in  the  vice-admiralty  court  at  Halifax  for  for- 
feiture, the  libel  setting  out  the  imperial  acts  of  1819  and  1867  and 
the  Dominion  statutes  of  1868  and  1870.  Judgment  was  delivered  by 
8ir  William  Young  November  15.  1871.  After  reciting  the  facts 
and  conunenting  upon  the  circumstance  that  the  case  had,  by  reason 
of  the  conclusion  of  the  treaty  of  Washington  of  May  8.  1871,  "  lost 
much  of  its  importance.'"  he  quoted  the  convention  of  1818.  and  said: 
'*  The  defendants  allege  that  the  Xickevson  entered  the  Bay  of  Ingo- 
nish and  anchored  Avithin  three  marine  miles  of  the  shore  for  the 
purpose  of  obtaining  water  and  taking  off  two  of  her  men  who  had 
friends  on  shore,  neither  the  nuister  nor  the  crcAv  on  board  thereof, 
in  the  words  of  the  responsive  allegation,'  fishing,  preparing  to  fish, 
nor  procuring  bait  wherewith  to  fish,  nor  having  been  fishing  in 
British  waters  Avithin  three  marine  miles  of  the  coast.'  Had  this  been 
proved,  it  Avould  haAe  been  a  complete  defense,  nor  Avould  the  court 
have  been  disposed  to  narrow  it  as  respects  either  Avater,  j)rovisions 
or  Avood.  But  the  evidence  conclusiA'ely  shoAvs  that  the  allegation  put 
in  is  untrue.  The  defendants  have  not  claimed  in  their  plea  Avhat 
their  counsel  claimed  at  the  hearing,  and  their  evidence  has  utterh' 
failed  them.  The  A'essel  Avent  in,  not  to  obtain  AAater  or  men,  as  the 
allegation  says,  nor  to  obtain  Avater  and  provisions,  as  their  Avitness 
says;  but  to  purchase  or  procure  bait  (Avhich.  as  I  take  it,  is  a  pre- 
paring to  fish),  and  it  Avas  contended  that  they  had  a  right  to  do  so, 
and  that  no  forfeiture  accrued  on  such  entering.  The  ansAver  is.  that 
if  a  priA'ilege  to  enter  our  harl)ors  for  bait  Ava,s  to  be  conceded  to 
American  fishermen,  it  ought  to  have  been  in  the  treaty,  and  it  is 
too  important  a  matter  to  haA'e  been  accidentally  overlooked.  We 
knoAv,  indeinl,  from  the  state  jjapers  that  it  Avas  not  overlooked, — that 
it  Avas  suggested  and  declined.  But  the  court,  as  T  have  already  inti- 
mated, does  not  insist  upon  that  as  a  reason  for  its  judgment.  AMiat 
may  be  justly  and  fairly  insisted  on  is  that  beyond  the  four  purposes 
specified  in  the  treaty — ^shelter,  repairs.  Avater  and  Avood, — here  is 
another  purpose  or  claim  not  specified ;  Avhile  the  treaty  itself  declares 


T'.KS  .VATIONAI.    JURISDICTION  :    TERRITORIAL    LIMITS.  [§165. 

that  no  such  other  j)iirp()so  or  chiim  shall  bo  received  to  justify  an 
eutrv.  It  a])i)ears  to  me  an  inevitable  conclusion  that  the  '  J.  H. 
Xickersoii,'  in  entei-in<j:  the  Bay  of  In^onish  for  the  purpose  of  pro- 
curin<r  bait,  and  evincin<>-  that  purpose  by  purchasing  or  procur- 
in<r  bait  while  there,  became  liable  to  forfeiture,  and  upon  the 
true  construction  of  the  treaty  and  acts  of  Parliament,  was  legally 
seized.  1  direct,  therefore,  the  usual  decree  to  be  filed  for  condemna- 
tion of  vessel  and  cargo,  and  for  distribution  of  the  proceeds  accord- 
ing to  the  Dominion  act  of  1871." 

Extract  from  the  Ilalifa.r  DuUii  licportcr  uml  Times.  Nov.  15,  1871, 
Docuiiu'iits  and  I'roooedings  of  the  Halifax  Commission,  III.  3395- 
;'.398. 

'■  The  right  to  enter  Canadian  *  bays  or  harbors  for  the  purpose  of 
shelter  (uul  of  rcpah-liu/  ddnuujes  tho'ebi"  includes  in  itself  the  right 
to  procure  Avhatever  supplies  are  necessary  for  the  successful  con- 
tinuance of  the  voyage.  The  statute  3  and  4  Vict.,  c.  65,  s.  G,  gives 
the  admiralty  court  jurisdiction  to  decide  'all  claims  and  demands 
whatsoever  .  .  .  for  ticccxsarics  sii ppl'/ed  to  any  foreujn  xhip  or  sea- 
(jiHiuj  rcssr/:  In  The  Kiga  ( L.  K.  8  Ad.  and  Ec.  niC),  522),  Sir 
K.  Phillimore  said:  'I  am  unal)le  to  draw  any  solid  distinction  (es- 
j)ecially  since  the  last  statute)  between  necessaries  for  the  shij)  and 
necessaries  for  the  voyage.  ...  I  am  of  o])inion  that  whatever  is  lit 
and  pro])er  for  the  service  on  which  a  vessel  is  engaged,  whatevei 
the  ownei-  of  that  vessel,  as  a  j^rudent  man,  would  have  ordered  if 
j)resent  at  the  time,  comes  within  the  meaning  of  the  term  '*  neces- 
sarii^s  "'  as  ai)plied  to  those  rei>airs  done  or  things  provided  for  the 
ship  by  order  of  the  master,  for  which  the  owners  are  liable.'  Under 
this  i-uling  obtaining  supi)lies  necessary  for  the  continuance  of  the 
voyage  would  be  obtaining  'necessaries.'  and.  a  fortiori,  'repairing 
(hunages."  See  remarks  of  CMiambre,  J.,  in  Fennings  i\  Grcnville, 
1  Taunt.  24S."" 

Note  of  Dr.  Wiiarton.  Int.  Law  DIr.  2(1  od.  III.  .")2.  §  .".O-i.  He  also  added: 
"("ai-cfnl  search  lias  failed  to  snpiily  a  single  case  in  which  British 
coni-ts  have  sustained  the  confiscation  of  American  fishing  vessels  on 
the  ground  of  purchase  of  sujii>lics  in  Canadian  ports.  Yet,  as  is 
shown  in  the  proceedings  of  the  Halifax  conunission,  the  running.  Ity 
.\merican  fishing  vessels,  into  Canadian  ports  to  ohtain  sni)plies  has 
l)een  in  conformity  with  ancient  usage:  a  usage  which  still  continues: 
and  tiiis  usage  is  i-ec(igni/,ed  in  the  Canadian  adjudications." 

"Almnst  tile  vi'vy  last  witness  we  liad  on  the  stand  told  your  honors  that 
liefm-e  tile  recipi-ncity  treaty  was  made  we  were  huying  hait  in  New- 
foundland, and  several  witnesses  from  time  to  time  have  stated  that 
it  is  a  very  ancient  jn-actice  for  us  to  buy  l>ait  and  supplies  and  to 
trade  with  the  |ieople  along  tlie  shore,  not  in  merchandise  as 
merciiants.  hut  to  liny  sujiiilies  of  iiait  and  pay  the  selliM-s  in  money 
or  trade,   as  might   lie  most   convenient.     Now,   that  is  one  of  those 


§  166.]  THE    NORTHEASTERN    FISHERIES.  799 

natural  trades  that  grow  up  in  all  countries ;  it  is  older  than  any 
treaty ;  it  is  older  than  civilized  states  or  statutes.  Fisheries  have 
hut  one  history.  As  soon  as  there  are  places  people*!  with  inhab- 
itants fishermen  go  there."     (Mr.  Dana.  Halifax  Com.  II.  1573.) 

4.  Treaty  of  Washington.  1871. 

§    166. 

"When  the  Joint  High  Connnission.  whicli  negotiated  the  treaty  of 
The    Joint    High    AVashingtoii.  met  on  February  -27.  1871,  the  disi^ute 

Commission.        as  to  the  fisheries  wa.s  one  of  the  subjects  that  had 
been  placed  Avithin  its  cognizance. 

The  British  commissioners  were  instructed  that  the  two  chief  ques- 
instructions    of    tions   were:  "As   to   whether   tlie  expression   'three 

British  commis-     marine  mik^s  of  any  of  the  coasts,  bays,  creeks,  or 

sioners.  harbors  of  his  Britannic  Majesty's  dominions'  should 

be  taken  to  mean  a  limit  of  three  miles  from  the  coast  line,  or  a  limit 
of  three  miles  from  a  line  draAvn  from  headland  to  headland;  and 
whether  the  proviso  that  *  the  American  fishermen  shall  be  admitted 
to  enter  such  bays  or  harbors  for  tlie  purpo.^e  of  shelter,  and  of  repair- 
ing damages  therein,  of  purchasing  wood,  and  of  obtaining  water, 
and  for  no  other  purpose  whatever,'  is  intended  to  exclude  American 
vessels  from  coming  inshore  to  traffic,  transship  fish,  purchase  stores, 
hire  seamen,  etc."  While  a  preference  was  expressed  for  the  conclu- 
sion of  a  definite  understanding  upon  the  disputed  interi^retation  of 
the  convention  of  1818,  the  British  commissioners  were  authorized  to 
propose  that  "  the  whole  question  of  the  relations  between  the  United 
States  and  the  British  possessions  in  North  America,  as  regards  the 
fisheries."  should  be  ''  referred  for  consideration  and  inquiry  to  an 
international  commission,  on  which  two  connnissioners.  to  be  here- 
after appointed,  in  consultation  with  the  government  of  the  Domin- 
ion, should  be  the  British  representatives."  As  it  was  not  probable 
that  such  a  commission  would  be  able  to  report,  and  that  a  treaty 
coidd  be  framed,  before  the  commencement  of  the  fishing  season  of 
1871.  the  British  commissioners  were  authorized  to  agree  upon  some 
means,  by  licenses  or  otherwise,  by  which  disputes  might  in  the  mean- 
time he  avoided." 

In  the  instructions  to  the  American  connnissioners.  tlie  following 
grounds  were  taken : 
Instructions   of        j    jj^.jt  ^j^^,  acquisition  of  the  inshore  fisheries  for 

American    com-      ,i         k  •  >-•   t  p  •  ^ 

.    .  the  American  hsiiermen  was  or  more  importance  as 

missioners.  »   . 

reiiKjving  danger  of  collision  than  on  account  of  its 
money  value,  the  latter,  probifbly.  being  overestimated  by  the  Cana- 
dians. 


"Lord  (Jranville  to   Her   Majesty's    High  Connnissioners,   February  9,   1871. 
(Papers  relating  to  the  Treaty  of  Washington,  VI.  :373-o74.) 


;s()()  N.vnoNAh  .irRisDicTioN :   t?:rrttorial  limits.       [§166. 

•1.  That  the  lu'adlaixl  doctriiu'  had  no  foundation  in  the  convention 
of  isls.  and  had  hcon  decided  against  (ireat  Britain  in  the  case  of  the 
-chooncr  \V((s]i'n,(ifoii,  under  the  chiinis  convention  of  February  8, 
is:,:',. 

."',.  That  (lie  assumption  to  prevent  American  fishermen  from  pur- 
chasiuii'  l)ait.  supplies,  ice,  etc..  and  from  transshipping  their  fish  in 
bond,  under  c()h)r  of  the  convention  of  1818,  was  never  acquiesced  in 
l)y  the  United  States,  and  was  carrving  out  in  practice  provisions 
which  the  Auu'rican  [)lenip()tentiaries  declined  to  insert  in  that  con- 
\(Mition. 

I.  That  as  the  mackerel  fisherv.  out  of  which  the  trouble  mostly 
ai-dsc.  had  couic  into  existence  since  ISIS,  it  Avas  a  subject  for  consider- 
ation whether  the  convention  was  fairly  applicable  to  it. 

For  th(>  adjustuient  of  these  questions  it  was  suggested  that  provi- 
sion might  be  made,  either — 

1.  By  agreeing  on  the  terms  upon  which  the  Avhole  of  the  reserved 
Hshing  gi'ounds  might  be  thrown  open  to  American  fishermen,  all 
ol)no.\ious  laws  to  be  rej^ealed.  and  the  disputed  reservation  as  to 
poi'ts.  harbors,  etc..  to  be  abrogated:  or. 

•1.  By  agreeing  ui)on  the  construction  of  the  disputed  renunciation, 
and  upon  the  principles  on  which  a  line  should  be  run  by  a  joint 
connnission  to  mark  the  territory  from  which  the  American  fishermen 
were  to  be  excluded:  and  by  repealing  the  obnoxious  laws,  and  agree- 
ing on  the  meastu-es  to  be  taken  for  the  protection  of  the  colonial 
rights,  such  measures  to  prescribe  the  penalties  for  the  violation  of 
ihoM'  rights,  and  to  jjrovide  foi-  a  mixed  tribunal  for  their  enforce- 
ment. It  might  also,  said  the  American  instructions,  be  well  to  con- 
>idei'  whether  it  should  be  further  agreed  that  the  fish  taken  in  the 
wiiters  ()|)i'n  to  both  nations  should  be  admitted  free  of  duty  into  the 
(nited  States  and  the  British  North  American  colonies." 

The  ii'sults  of  the  deliberations  of  the  Joint  High  Commission  on 
the  subject  of  the  fisheries  Avere  embodied  in  certain 
Treaty  of  May  8,  .,,.,1,.],.^  „f  ti^.  treatv  concluded  at  AVashington  May 
s.  ISTI." 

By  Ai-ticle  X\'III.  it  was  provided  that,  in  addition  to  the  liberty 

secui-ed  bv  the  convention  of  1818  of  taking,  dryiug. 
Restoration  offish-  ,  •    '     /•   i  ^    ■  i.        i!  i-v      t^    -i.-   i    x^      i.i 

,.,     ^.  and  curing  tish  on  certam  coasts  or  the  British  jsorth 

mg  liberties.  .         '^  . 

AmeiMcan  colonies,  the  inhabitants  of  the  United 
States  -hould  liave.  in  counnon  with  the  subjects  of  Her  Britannic 
Majoty.   the    liberty,    for   the   lei-m   of  years  mentioned   in   Article 

"  r;i|.<.rs  irlMtiiii:  tu  lilt'  Trcnt.v  <,f  WasliiiHCten.  VI.  2S7-2S8. 
''  I'd-   tlif  (lclil,ci-:iti(>iis  of  ilic  .I(,iiit    llif,'h  Commission  on  this  subject,   see 
•Muuiv.  Int.  Ai-liitr.itions,  I.  7KJ-719. 


§  166.]  THE    NORTHEASTERN    FISHERIES.  801 

XXXIII."  of  the  treaty,  "  to  take  ifish  of  every  kind,  except  shell- 
fish, on  the  sea -coasts  and  shores,  and  in  the  bays,  harbors  and  creeks, 
of  the  Provinces  of  Quebec,  Nova  Scotia,  and  New  Brunswick,  and 
the  colony  of  Prince  Edward's  Island,  and  of  the  several  islands 
thereunto  adjacent,  without  being  restricted  to  any  distance  from  the 
shore,  with  permission  to  land  upon  the  said  coasts  and  shores  and 
islands,  and  also  upon  the  Magdalen  Islands,  for  the  purpose  of  dry- 
ing their  nets  and  curing  their  fish ;  provided  that,  in  so  doing,  they 
do  not  interfere  with  the  rights  of  private  property,  or  with  British 
fishermen,  in  the  peaceable  use  of  any  part  of  the  said  coasts  in  their 
occupancy  for  the  same  purpose."  And  it  was  provided  that  the 
liberty  thus  defined  applied  solely  to  the  sea  fishery,  and  that  the 
salmon  and  shad  fisheries,  and  all  other  fisheries  in  rivers  and  the 
mouths  of  rivers,  were  reserved  exclusively  for  British  fishermen. 

On  the  other  hand,  it  was  agreed  by  Article  XIX.  that  British 
subjects  should  have,  in  common  with  the  citizens  of  the  United 
States,  and  subject  to  such  terms,  conditions,  and  limitations  as  were 
expressed  in  the  preceding  article,  the  liberty  to  take  fish,  and  to  land 
for  the  purpose  of  drying  nets  and  curing  fish,  on  the  eastern  seacoast 
and  shores  of  the  United  States  north  of  the  thirty-ninth  p'arallel  of 
north  latitude,  and  on  the  shores  of  the  adjacent  islands,  and  in  the 
bays,  harbors,  and  creeks  of  such  seacoasts  and  islands. 

liy  Article  XX.  it  was  provided  that  the  places  designated  by  the 
connnissioners  appointed  under  Article  I.  of  the  rec- 
iprocity treaty  of  June  5,  1854,  upon  the  coasts  of 
the  two  countries,  as  places  reserved  from  the  common  right  of  fish- 
ing under  that  treaty,  should  in  like  manner  be  regarded  as  reserved 
from  the  common  right  of  fishing  under  the  present  article ;  and  that, 
in  case  any  question  should  arise  as  to  the  common  right  of  fishing  in 
places  not  thus  designated  as  reserved,  a  commission  should  be  ap- 
pointed to  designate  such  places,  in  precisely  the  same  manner  as 
under  the  treaty  of  1854. 

In  addition  to  these  stipulations,  it  was  agreed  by  Article  XXI. 
Free  admission  of  that,  for  the  term  of  years  mentioned  in  Article 
fish  and  fish  oil.  XXXIII.  of  the  treaty,  '^fish-oil  and  fish  of  all 
kinds,  (except  fish  of  the  inland  lakes,  and  of  the  rivers  falling  into 
them,  and  except  fish  preserved  in  oil,)  being  the  produ<-e  of  the 
lisheries  of  the  United  States,  or  of  the  Dominion  of  Canada,  or  of 

a  Thi.-?  article  provided  that  Articles  XVIII.  to  XXV..  inclusive,  and  Article 
XXX.  should  jxo  into  operation  as  soon  as  the  necessary  laws  sliould  liave  been 
passed  to  give  them  effect,  and  remain  in  force  for  ten  years  thereafter,  and 
furtlicr  until  the  expiration  of  two  years  after  eitlier  party  shoul<l  have  notified 
the  otlicr  of  its  wish  to  terminate  them,  each  party  being  at  lilterty  to  give  such 
notice  at  the  end  of  the  period  of  ten  years  or  at  any  time  afterward. 

H.  Doc.  551 51 


802  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  166. 

Prince  Edward's  Island."  should  "  be  admitted  into  each  country, 
respectively,  free  of  duty." 

It  l>eing  asserted  by  Great  Britain,  but  not  admitted  by  the  United 

States,  that  the  privileges  accorded  to  the  citizens  of 

Arbitration  as  to    ^j^^  United  States  under  Article  XVIII.  of  the  treaty 

ques  lono  com-     ^^^^.^  ^^f  greater  value  than  those  accorded  to  British 

pensation.  .  ^  .  ^      ^  ^  . 

subjects  under  Articles  XIX.  and  XXI..  it  was  pro- 
vided by  Article  XXII.  that  commissioners  should  "  be  appointed  to 
determine,  having  regard  to  the  privileges  accorded  by  the  United 
States  to  the  subjects  of  Her  Britannic  Majesty,  as  stated  in  Articles 
XIX.  and  XXI.  of  this  treaty,  the  amount  of  any  compensation 
which,  in  their  oj^inion.  ought  to  he  paid  by  the  (xovernment  of  the 
United  States  to  the  (yovernment  of  Her  Britannic  Majesty  in  return 
for  the  privileges  accorded  to  the  citizens  of  the  United  States  under 
Article  XVIII.  of  this  treaty."  It  was  agreed  that  any  sum  of 
money  which  the  commissioners  might  so  award  should  be  paid  by 
the  United  States  in  a  gross  sum.  within  twelve  months  after  such 
award  should  have  been  given. 

By  Article  XXXII.  of  the  treaty  it  was  agreed  that  the  stipula- 
tions of  Articles  XVIII.  and  XXV.,  inclusive,  should 
extend  to  the  colony  of  Newfoundland,  so  far  as  they 
were  applicable:  but  that  if  the  Imperial  Parliament,  the  legislature 
of  Newfoundland,  or  the  Congress  of  the  United  States  should  not 
embrace  that  colony  in  the  laws  j^assed  to  give  those  articles  effect, 
then  the  article  (XXXII.)  should  be  of  no  effect." 

To  a  proposal  of  the  (xovernment  of  Newfoundland  that  American 
fishermen  should  Ije  adnntted  to  the  right  of  taking  seals  within  the 
territorial  jurisdiction  of  Newfoundland  in  return  for  the  free 
admission  into  the  United  States  of  the  products  of  the  Newfoundland 
seal  fishery,  the  Department  of  State  replied  that  such  a  measure 
would  refjuire  the  sanction  of  Congress,  and  that  it  was  not  considered 
pi"<)l)al)le  that  the  assent  of  that  l)0(ly  would  be  given.'' 

British  Columbia  fisheries  j^roducts  were  not  entitled  to  free  entry 
into  the  United  States  under  tlie  treaty  of  ISTl.'' 

Acts  in  relation  to  the  fishery  articles  were  passed  by  the  Imperial 
Parliament  and  by  Canada  and  Prince  Edward  Island.**     These  acts 

"  As  to  «t'rtiiin  iirnvisionnl  proposals,  pending  tho  adoption  of  legislation  to 
<-arry  into  effect  the  fisheries  clanses,  see  Mfxire.  Int.  Arbitrations,  I.  722;  For. 
Kcl.  ISTl.  4.S.V4!t2:  1872.  I.  21.V222. 

''  .Mr.  Kish.  Sec.  of  State,  to  Sir  K.  Thornton.  Hrit.  inin.  .Tune  25,  187.*i  MS. 
Notes  to  (ir.  I?r.  XVT.  ^?/).  As  to  the  Newfoiuidland  fisheries,  see  Rev.  des 
I).-ux-.Mondes.  XVI.  (Nov.  1874),  and  20  Hunfs  Merch.  Mag.  420. 

'^ '■><■>  r.r.  and  For.  State  Papei-s.  f t-'KH-lM ijt.  As  to  the  rights  of  nations  over  sea 
li^lieries.  see  II.  KejKirt  7,  40  Cong.  1  sess. 

<*  For.  Kel.  1873,  I.  4('2,  4u:;,  407. 


§  166.]  THE    NORTHEASTERN    FISHERIES.  803 

were  to  take  effect  at  a  time  to  be  appointed  by  proclamation,  in  order 
that  the  beginning  of  their  operation  might  be  simultaneous  with  that 
of  the  legislation  to  be  enacted  by  the  United  States.  The  corre- 
sponding legislation  on  the  part  of  the  United  States  was  adopted 
on  March  1,  1878.  to  take  effect  on  the  1st  of  the  following  July,  the 
beginning  of  the  new  fiscal  year."  On  the  8d  of  March,  1878,  the  com- 
mittee of  the  privy  council  of  Canada  recommended  that,  pending 
the  coming  into  force  of  the  United  States  act,  American  vessels 
should  not  be  prevented  from  fishing  within  the  three-mile  limit.'' 
On  the  7th  of  June,  1878.  Mr.  Fish  and  Sir  Edward  Thornton  signed 
at  Washington  a  })rotocol  in  which,  after  reciting  the  reciprocal  legis- 
lation on  the  subject,  they  declared  that  the  fishery  articles  would  take 
effect  on  the  1st  of  the  following  July.''  The  colony  of  Xinvfound- 
land.  having  passed  the  necessary  laAvs,  was  admitted  to  the  benefits  of 
the  treaty  and  the  act  of  Congress  on  the  1st  of  ,Iune,  1874.** 

The  question  of  the  amount  of  the  compensation,  if  any,  to  be  paid  to 
Great  Britain  in  return  for  the  fisheries  privilege' 
accorded  to  the  citizens  of  the  United  States  under 
the  treaty  of  1871  was  determined  by  the  commission  at  Halifax,  in 
1877.''  The  aggregate  amount  claimed  for  the  twelve  years  during 
v.hich  the  treaty  was  certainly  to  remain  in  force  was  $14,880,000,  or 
$1,240,000  per  annum.  Of  this  amount  the  sum  of  $2,880,000  was 
claimed  on  account  of  Newfoundland.'^  The  commission  by  a'  vote 
of  two  to  one,  the  American  commissioner  dissenting,  awarded  Nov. 
1:8.  1877j  the  total  sum  of  $5,500,000  in  gold,  which,  after  some  dis- 
cussion, was  duly  paid." 

During  the  taking  of  proofs  in  support  of  the  British  case  at  Hali- 
Commerciai  priv-  ^^-^'  ^^  1877,  it  became  evident  that  a  large  part 
iieges.  of  the  British  claim  was  based  on  the  alleged  advan- 

tages of  a  commercial  character.  Mr.  Foster,  the  agent  of  the 
United  States,  took  the  ground  that  these  advantages,  whether  valu- 

"  17  Stats,  at  L.  4S2. 

f>  For.  Rel.  187:i.  I.  418-410. 

f  Treaties  and  Conventions,  ITTtMHST,  498. 

'i  Treaties  and  Conventions,  1776-1887,  490;  For.  liel.  187.3,  I.  419.  427.  429; 
1874.  r».">4,  i>.">7.  .5.'')8.  .'(.59.  All  of  Labrador,  outside  the  province  of  Queliec. 
came  into  the  arrangement  as  part  of  the  colony  of  Newfoundland.  (For.  Rel. 
1874.  507.  572.  573 ;  1875,  I.  04.3.) 

'■  Moore.  International  Arl)itrations.  I.  725  et  seq.  As  to  the  attempt  to  super- 
se<le  the  necessity  of  an  arbitration  by  a  new  reciprocity  arranfcement.  see  id. 
724-725.     As  to  Mr.  Delfosse,  the  third  commissioner,  see  id.  725-727,  746-747. 

f  .Vs  to  tlie  iirivileges  covered  by  these  claims,  and  the  answer  of  the  Fnited 
States,  see  Moore.  International  Arbitrations,  I.  732-735,  736-743. 

.'/  Moore,  Int.  Arbitrations,  I.  74.5-753.  See,  also,  S.  Ex.  Doc.  44.  45  Couk-  2 
sess. ;  S.  Ex.  Doc.  100,  45  Cong.  2  sess. ;  H^  Ex.  Doe.  89,  45  Cong.  2  sess. ;  S.  Rep. 
439,  45  Cong.  2  sess. ;  S.  Mis.  Doc.  73,  15  Cong.  2  sess. 


804  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS,  [§  166. 

;il)l('  or  not.  wtTc  not  st'cnrod  to  the  citizens  of  the  United  States  by 
the  artK  les  of  the  treaty  of  Washington.  He  therefore,  on  the  1st  of 
Sc|)t('ni!)er.  submitted  to  tlie  eonnuission  the  following  motion: 

■•  The  eonnsel  and  agent  of  the  United  States  ask  the  honorable 
commissioners  to  rule  and  declare  that  it  is  not  competent  for  this 
commi>^ion  to  award  any  compensation  for  commercial  intercourse 
between  the  two  countries,  and  that  the  advantages  resulting  from  the 
j>ractice  of  purchasing  bait.  ice.  supplies,  etc..  and  from  I)eing  allowed 
to  tran-ship  cargoes  in  British  waters,  do  not  constitute  good  founda- 
iion  for  an  award  of  compensation,  and  shall  be  wholly  exchided 
from  the  consideration  of  this  tril)iinal." 

In  support  of  this  motion  Mr.  Foster  contended  that  l)y  Article 
XXII.  of  the  treaty  of  Washington  the  question  before  the  connnis- 
sioii  was  the  amount  of  any  compensation  which  ought  to  be  paid  by 
the  United  States  for  the  privileges  secured  to  their  citizens  under 
Article  XVIII.  of  the  treaty  of  Washington.  V>\  that  article  the 
privileges  si'cured  to  the  citizens  of  the  United  States  were  the  liberty 
of  inshore  fishing  and  that  of  landing  on  uninhal)ited  and  desert 
coasts  for  the  purposi'  of  drying  nets  and  curing  fish.  These  were, 
he  maintained,  the  sole  concessions  to  which  the  jurisdiction  of  the 
conunission  extended.  All  other  questions,  such  as  the  purchase  of 
!)ait.  ice.  and  supplies,  the  conduct  of  conmiercial  intercourse,  and 
alleged  damages  to  British  fisheries,  were  l)evoiid  the  commission's 
cognizance.  The  treaty  of  Washington  conferred  no  such  ])rivileges 
(11  the  inhabitants  of  the  United  States,  who  enjoyed  them  merely 
by  >ufrerance.  and  could  at  any  time  l)e  deprived  of  them  by  the 
onforcement  of  existing  laws  or  the  reenactment  of  former  oppressive 
statulo." 

C'oun>el  for  (ireat  Britain,  in  reply,  maintained  that  the  privileges 
in  (|uestioii  were  embraced  in  and  incidental  to  the  grant  under  Ar- 
ticle XVI II.  of  the  treaty  of  AVashington.  By  Article  I.  of  the 
convention  of  isis.  the  American  fishermen  were,  he  said,  permitted 
to  enter  Biitisli  waters  for  four  specified  purpos(»s.  and  "  for  no  other 
puij)o>e  whatever."  The  ol)ject  of  the  treaty  of  Washington  was 
to  <lo  away  altogether  with  these  restrictions  and  to  place  the  Amer- 
ican fi>h<'rmen  on  the  same  footing  as  the  British  fishermen  in  iv- 
>pect  of  the  inshore  fisheries.  According  to  the  argument  of  Mr. 
Fo>ter.  said  I>riti^h  counsel,  if  an  American  fisherman  landed  for  the 
pnrpos<'  of  oi)taining  a  barrel  of  flour  in  exchange  for  fish,  or  of  pur- 
•lia-ing  bait,  or  of  ol)taining  a  gallon  or  two  of  kerosene  oil,  he  would 
be  -iibject  to  punishment  and  render  his  vessel  liable  to  forfeiture.'' 

'  I><>(uiiients  and  rr<icpe<lings  of  the  Halifax  romniission.  II.  1539  et  seti. 
I  xxuiiiciits    anil    I'rocccdinfrs    of    the    Halifax    Conunission.    II.    1.>47-I.>j7. 
oihtr  (.•uunsel  t<Mjk  part  in  the  discussiou.     (Id.  1.j07-1570.) 


§  166.]  THE    NORTHEASTERN    FISHERIES.  805 

The  argument  on  Mr.  Foster's  motion  was  closed  on  the  part  of 
the  United  States  by  Mr.  Dana.  He  contended  that  American  fish- 
ermen possessed  bv  comity  the  right  to  run  into  British  ports  and 
bu}^  bait  and  other  necessaries,  unless  they  were  specially  excluded 
on  some  proper  ground.  Great  Britain  might  regulate  their  entry, 
require  them  to  report  at  the  custom-house  and  be  searched  in  order 
to  see  whether  they  were  merchants  in  disguise,  and  levy  duties  upon 
them.  But,  in  the  absence  of  a  prohibition,  there  was  no  right  to 
prevent  fishermen  from  buying  bait  and  supplies;  and  he  main- 
tained that  there  was  no  law  preventing  the  exercise  by  American 
fishermen  of  the  privileges  in  question. 

On  the  Gth  of  September  the  commission  unanimously  rendered 
the  following  decision  : 

'•  The  commission  having  considered  the  motion  submitted  by  the 
agent  of  the  United  States  at  the  conference  held  on  the  1st  instant, 
decide: 

'■  That  it  is  not  within  the  competence  of  this  tribunal  to  award 
compensation  for  commercial  intercourse  between  the  two  countries, 
nor  for  purchasing  bait,  ice,  supplies,  etc.,  nor  for  the  permission 
to  transship  cargoes  in  British  waters." 

After  this  decision  was  read.  Sir  Alexander  Gait,  the  British  com- 
missioner, stated  the  grounds  on  which  he  acquiesced  in  it.  He 
did  not  think  that  counsel  for  the  United  States  had  correctly  stated 
the  position  of  the  two  parties  at  the  time  when  the  treaty  of  Wash- 
ington was  entered  into.  The  impression  left  on  his  mind  by  an 
examination  of  the  treaty  was,  said  Sir  Alexander,  that  it  must 
necessarily  have  been  supposed  that,  as  in  the  case  of  the  reciprocity 
treaty,  so  in  the  case  of  the  Washington  treaty,  the  rights  of  traffic 
and  of  obtaining  bait  and  supplies  were  conferred,  being  incidental 
to  the  fishing  privilege.  He  therefore  believed  that  it  was  the  inten- 
tion of  the  parties  to  the  treaty  of  Washington  to  direct  the  tribunal 
to  consider  all  the  points  relating  to  the  fisheries  Avhicli  had  been 
set  forth  in  the  British  case;  but  he  was  now  met  by  the  most  au- 
thoritative statement  as  to  what  the  parties  to  the  treaty  intended. 
The  agent  of  the  United  States  had  distinctly  stated  that  it  Avas  not 
the  intention  of  his  Government  to  provide  by  the  treaty  for  the 
continuance  of  those  incidental  privileges,  and  that  the  United  States 
were  prepared  to  take  the  whole  responsibility  and  to  run  all  the 
risk  of  the  reenactment  of  the  vexatious  statutes  to  which  reference 
hatl  been  made.  From  this  argument  as  to  the  true,  rigid,  and  strict 
interpretation  of  the  treaty  of  Washington,  he  "  could  not  escape." 
The  responsibility  must  rest  upon  those  who  appealed  to  the  strict 
words  of  the  treaty  as  their  justification." 

a  Documents  and  Proceedings  of  the  Halifax  Commission,  II.  1585-1588. 


806  NATIONAL   JURISDICTION :    TERRITORIAL   LIMITS.  [§  166. 

Accompanying  tlie  answer  of  the  United  States  before  the  Halifax 
coinniission,  there  was  a  "  Brief  for  the  United  States 
em  oria  wa  era.  j^j^^^j^  ^^^^,  Question  of  the  P^xtent  and  Limits  of  the 
Inshore  Fisheries  and  Territorial  Waters  on  the  Atlantic  Coast 
of  British  North  America."  In  this  brief  the  discussions  between 
the  two  (irovernments  subsequent  to  the  convention  of  ISIS  are 
reviewed,  and  various  writers  on  international  law  are  cited,  and 
it  is  maintained  "  that,  prior  to  the  treaty  of  Washington,  the  fisher- 
men of  the  United  States,  as  well  as  those  of  all  other  nations,  could 
rightfully  fish  in  the  open  sea  more  than  three  miles  from  the  coast; 
and  could  also  fish  at  tlie  same  distance  from  the  shore  in  all  bays 
more  than  six  miles  in  width,  measured  in  a  straight  line  from  head- 
hind  to  headland. '■  The  brief  cites,  on  the  question  of  territorial 
waters.  Queen  r.  Keyn,  L.  K.  2  Plxch.  I)iv.  GH;  Bluntschli,  Law  of 
Nations,  book  4,  g§  302,  309;  Kliiber.  Droit  des  Gens  Modernes  de 
TEurope,  Paris,  1831,  vol.  1,  p.  2ir);  Ortolan,  Diplomatic  de  la  Mer. 
ed.  18G4,  pp.  145,  153;  Hautefeuille,  Droits  et  Devoirs  des  Nations 
Neutres,  tom.  1,  tit.  1,  ch.  3.  >^  1 ;  Manning's  Law  of  Nations,  by 
Amos;  Martens,  Precis  du  Droit  des  Gens  Modernes  de  TEurope, 
ed.  18()4,  Pinheiro-Ferreira,  J:?!^  40,  41 :  De  Cnssy,  Phases  et  Canses 
Celebres  du  Droit  Maritime  des  Nations,  Leipzig.  1850,  liv.  1,  tit. 
2,  §§  40,41." 

The  British  representatives  filed  a  brief  in  reply.  In  this  brief 
it  is  declared  to  be  "  admitted  by  all  authorities,  Avhether  writers  on 
international  law.  judges  who  have  interpreted  that  law,  or  states- 
men who  have  negotiated  upon  or  carried  it  into  effect  in  treaties  or 
conventions,  that  every  nation  has  the  right  of  exclusive  dominion 
and  jurisdiction  over  those  portions  of  its  adjacent  waters  which  are 
included  l)v  promontories  or  headlands  within  its  territories."  On 
this  proposition  the  brief  cites  Kent's  Com.  I.  32;  Lawrence's 
AVheaton  (1S(>3).  320.  The  brief  also  maintains  that  by  the  con- 
vention of  1818  the  United  States  fishermen  are  prohibited  from 
fishing,  not  merely  within  three  miles  from  the  shore,  but  within 
three  marine  miles  of  the  entrance  of  any  of  the  bays,  creeks,  oi- 
harbors  of  His  Britannic  Majesty's  dominions  in  America.^  As  to 
the  meaning  of  the  terms  coasts,  creeks,  bays,  and  harbors,  and  the 
extent  of  marint^  jurisdiction,  it  cites  Bee's  Adm.  Rep.  205;  act  of 
Congress,  3  Stats,  at  L.  13(;:  The  Anna,  5  Rob.  385;  United  States  r. 
Crush,  5  Mason,  298;  United  States  /'.  Bevan,  3  Wheat.  387;  Har- 
grave's  Tracts,  cha})ter  4:  De  Lovio  /•.  Boit,  2  Gallison,  2nd  ed.,  42(); 
Church  /•.  Hubbart,  2  Cranch,  187;  1  Op.  At.  Gen.  32;  Martin  r. 
Waddell,  l(j  Pet.  307:  Life  of  Sir  I^oline  Jenkins,  IL  720;  xVzuni, 

"  I kxuinents  and  I'roeeediugs  of  the  Halifax  Commission,  I.  119-167. 
»  Id.  II.  1887-1906. 


§  166.]  THE    NORTHEASTERN    FISHERIES.  807 

Droit  Maritime  de  TEiirope,  ch.  II.  art.  3,  §  3;  Pufendorf,  b.  3,  c.  5; 
Vattel  b.  I.  ch.  33:  Queen  r.  Keyn,  L.  K.  2  Exch.  Div.  ()3:  The  Direct 
United  States  Cable  Co.  r.  The  Anglo-American  Telegraph  Co.,  L.  R. 
2  App.  Cas.  394. 

The  British  agent  also  filed  certain  "  Official  Correspondence  from 
the  Years  1827  to  1872,  inclusive.  Showing  the  Encroachments  of 
United  States  Eishermen  in  British  North  American  Waters  since 
the  Conclusion  of  the  Convention  of  1818."  " 

On    Sunday,   fTanuary   (>,    1878,   some    American    fishermen,    while 

fishing  in  Eortune  Bay,  Xewfomidland,  were  attacked 

or  une    ay  case,     j^^^  ^^  ^^^^j^  ^^^  natives,  who  expelled  them  and  destroyed 

their  boats  and  nets.  The  attack  was  due  to  local  feeling  caused  by 
the  fact  that  the  American  fishermen,  under  a  claim  that  their  priv- 
ileges in  the  inshore  fisheries  under  the  treaty  could  not  be  abridged 
by  local  legislation,  were  availing  themselves  of  an  opportunity  to 
take  fish  in  the  bay  when  the  native  fishermen  were  forbidden  by 
the  colonial  law  to  carry  on  their  operations.  The  United  States 
minister  in  London  Avas  instructed  to  present  a  demand  for  damages 
amounting  to  $105,305.02.  The  British  (xovernment  took  the  ground 
that  the  treaty  granted  only  a  right  to  fish  in  common  with  Her 
Majesty's  subjects,  and  that  as  the  American  fishermen,,  as  their  evi- 
dence disclosed,  were,  by  the  manner  and  time  of  their  fishing  on  the 
occasion  in  question,  violating  the  laws  of  Newfoundland,  and  thus 
overstepping  the  limits  of  their  ])rivilege,  the  United  States  could 
not  complain  of  their  having  been  driven  away.  The  United  States, 
while  contending  that  the  local  law  could  not  l)e  admitted  to  define 
or  limit  the  treaty  privilege,  also  maintained  that,  independently  of 
this  question,  compensation  was  due  on  account  of  the  violence  and 
irregularity  of  the  acts  complained  of.  Early  in  1881  the  claims 
were  .settled  by  the  British  Government's  paying  £15,000,  which 
included  compensaiton  for  certain  injuries  sutfered  by  American 
fishermen  at  Aspee  Bay.^  The  ofl'er  of  indemnity  was  made  by 
Earl  (iranville  on  condition  of  receiving  from  the  Ignited  States  an 
'•  assurance  that  it  is  accej)ted  in  full  of  all  claims  arising  out  of  any 
interruption  of  American  fishermen  on  the  coast  of  Newfoundland 
and  its  dejKmdencies  up  to  the  present  time,  and  without  prejudice 
to  any  (juestion  of  the  rights  of  either  (lovernment  under  the  treaty 
of  Washington."  ''  To  this  Mr.  Lowell,  under  instructions  of  Mr. 
Evarts.  replied:  "The  assurance  I  may  give  is  this:  That  the  sum 
paid  is  accepted  in  full  of  all  claims  arising  out  of  any  interruptions 

"Documents  and  Proceedings  of  the  Halifax  Conunission.  II.  1457-1508. 

'' H.  Ex.  Doc.  84.  4<)  Con^.  2  sess.  ;  I'resident  Artliur.  first  annual  message, 
Dec.  t>.  1881. 

'■  Earl  Granville,  for.  sec.  to  Mr.  Lowell,  min.  to  England,  Feb.  26,  1881,  For. 
Rel.  1881,  509.   . 


SOS  NATIOXAT.    JURTSDTCTIOX  :    TEBRITORTAL   LIMITS.  [§166. 

(tf  American  Hshcnm'n  on  the  coasts  of  Newfoundland  and  its  de- 
jH'ndencies.  iij)  to  tliis  time  presented  to  either  (Government,  and  with- 
out j)reju(lice  to  any  (juestion  of  the  rights  of  either  Government 
under  the  treaty  of  Washington. "  " 

Hv  a  joint  resohition  of  Conorress  of  March  8.  1883.  the  President 
was  directed  to  ofive  notice  to  the  British  Government 
Termination      of     ^^^   ^j^^.   termination    of    Articles    XVIII.   to    XXV.. 
fiinerj  articles. 

inclusive,  and  of  Article  XXX.  of  the  treaty  of  May 

S.  1S71.  in  accordance  with  its  terms.''  Notice  was  oriven  accnrd- 
in<rly.  so  that  the  articles  expired  cm  July  1.  1885;  and  it  was 
atrreed  that  Article  XXXII..  by  which  Newfoundland  was  admitted 
to  the  arranircuient.  ended  with  them.''  Early  in  1885  it  was  suar- 
gested  by  the  British  minister  at  Washingfton  that,  as  inconvenience 
might  l>e  occasioned  by  the  expiration  of  the  articles  in  the  midst 
of  the  fishinof  season,  it  might  be  desirable  to  come  to  an  agreement 
under  which  they  might  in  eftect  be  extended  till  the  1st  of  January 
following.  After  consultation  with  leading  Senators.  ^Ir.  Freling- 
huysen  advised  the  British  minister  that  it  was  deemed  impracticable 
at  that  late  day  to  carry  out  the  suggestion:  and  a  Presidential 
proclamation  was  issued  warning  the  American  fishermen  of  the 
approaching  expiration  of  tlie  articles.'' 

March  12.  iss.").  the  British  minister  embodied  his  suggestion  in  a 

memorandum,  which   he  communicated  with  a   per- 
,„„^  '     sonal  letter  to  Mr.  Bavard,  who  had  succeeded  Mr. 

Frelinghuysen  as  Secretary  of  State.  Informal 
negotiations  ensued,  which  were  conducted  on  the  part  of  Canada 
an<l  Newfoundland  by  Sir  Ambrose  Shea.  They  resulted.  June 
'I'l.  iss.").  in  an  arrangement  by  exchange  of  notes,  and  the  results 
were  embodied  in  a  notice  issued  by  Mr.  Bayard  as  Secretary  of 
State.  In  tliis  notice  it  was  announced  that  the  privilege  of  in- 
shore fishing,  which  would  otherwise  have  ended  on  the  1st  of  July, 
might  continue  throughout  the  season  of  1885.  and  that  the  immunity 
thus  accorded  to  American  fishing  vessels  in  British-American  waters 
would  likewise  be  extended  to  British  vessels  and  subjects  engaged 


«  .Mr.  Lowell,  niin.  to  Lii^'I.ukI.  to  E:irl  (Jranvillo.  for.  se<-..  March  2,  1881.  For. 
Rpl.  1H.SL  ."hK*.  S«>e  also  Mr.  Ulaine.  Sec.  of  State,  to  Mr.  Ixjwell.  niin.  to 
EiiKlMiul.  .Inly  .".o.  1.S.SL  Tor.  Kel.  l.ssL  ."'»44.  For  proiwsals  as  to  the  abrogation 
or  susjx'iisioii.  in  i-onnectioii  with  tlie  Fortune  Bay  case,  of  the  fishery  articles 
of  tlie  treaty  of  Washington.  s«>e  S.  Mis.  Doc.  8o.  4."»  Cong.  .3  sess. :  IL  Ue|K)rt 
127."..  4t;  Cong.  2  sess.:  S.  K.\.  Doc.  ISO,  4<!  Cong.  2  sess.:  H.  Report  174<j.  4C 
Cong.  2  sess. 

J-  See  rejH.rt  of  Feb.  4.  1.S.S2.  II.  HeiM.rt  2:i.").  47  Cong.  1  sess. ;  22  Stat.  641. 

'■  For.  Uel.  l.KS;5.  4i;{.  4:'..-..  441.  4."j1.  4r4  :  1S.84.  214-21,-);  ISSii.  406. 

''Mr.  Fr.-linL'lniysen.  Sec.  of  State,  to  Senator  Kdniund.s.  .Jan.  l.-».  I8a'».  l."..*'. 
MS.  Doni.  L<t.  c.f.i  :  Mr.  I'relinghuysen.  See.  of  State,  to  Mr.  West,  British  niin., 
.I;ui.  211.  iss.-,.  .MS.  Notes  to  (ireat  Britain.  XIX.  025. 


§  166.]  THE    NORTHEASTERN    FISHERIES.  809 

in  fishing:  i"  tho  waters  of  the  United  States.  But,  as  the  joint  reso- 
hition  of  Congfress  had  repealed  the  act  of  March  1,  1878.  for  the 
execution  of  tlie  fishing;  artich's,  it  was  stated  that  tlie  arrano;(Mnent 
in  no  way  aflfected  the  question  of  exemption  from  customs  duties, 
as  to  which  the  abrogation  of  the  fishing;  artick^s  remained  compkHe. 
It  was  added,  however,  that,  as  ])art  of  the  arrangrement.  the  Pres- 
ickMit  woukl  bring;  the  whok^  question  of  the  fisheries  before  Cong;ress 
at  its  next  session  and  ivcommend  the  appointment  of  a  joint  com- 
mission to  consider  tlie  matter.  "  in  the  interest  of  maintaining^  g;ood 
neigfhborhood  and  friendly  intercourse  between  the  two  counti'ies, 
thus  aifording  a  prosj^ect  of  negotiation  for  the  development  and  ex- 
tension of  trade  between  the  United  States  and  British  North  Amer- 
ica." Copies  of  the  memoranda  and  exchang;e(l  notes  on  which  the 
agreement  rested  were  appended  to  the  notice,  and  reference  was  also 
made  to  the  President's  j)roclamation  of  January  31,  1885,  giving 
warning  of  the  termination  of  the  fishery  articles." 

In  his  annual  message  of  December  8,  1885,  President  Cleveland 
reconnnended  that  provision  should  be  made  for  the  apj)ointment  of 
a  joint  commission,  such  as  was  referred  to  in  the  arrangement.  This 
recommendation  was  voted  upon  adversely  by  the  Senate  on  April  13, 
1886.''  Negotiations  were  then  instituted  with  a  view  to  reach  a  joint 
interpretation  of  the  convention  of  1818,  but  they  were  unsuccessful, 
and  President  Cleveland,  in  his  annual  message  of  December  6,  1880, 
declared  that,  while  he  was  desirous  that  mutually  beneficial  and 
friendly  relations  should  exist  between  the  American  people  and  the 
inhabitants  of  Canada,  the  action  of  the  Canadian  officials  during  the 
past  season  toward  American  fishermen  had  been  "■  such  as  lo 
seriously  threaten  their  continuance."  He  added,  however,  that, 
although  he  was  disappointed  in  his  etforts  to  secure  a  satisfactory 
settlement  of  the  fishei-y  question,  negotiations  Avere  still  pending, 
Avith  reasonable  hope  that  before  the  close  of  Congress  an  announce- 
ment might  be  made  that  an  acceptable  conclusion  had  been  reached.'" 

"For.  Rel.  188.").  4r)0— iCK ;  message  of  I'resident  Cleveland  of  .Jan.  12.  1S8('). 
S.  Ex.  Doc.  .S2.  49  Cong.  1  sess. 

''  See  resolution  of  Senator  Frye.  .Tan.  IS.  ISSC.  adverse  to  the  ai)i)ointnient  of 
a  joint  eonimission,  S.  Mis.  Doc.  .'57,  4!)  Cong.  1  sess  ;  also,  resolution  reported  by 
.Mr.  Frye  from  the  Connnittee  on  Foreign  Relations,  Feb.  3,  188().  S.  Mis.  Doc.  .j9. 
49  Cong.  1  sess. 

c  The  message  of  .July  1*4,  188(i,  gives  seizures  and  detentions  which  bud  then 
taken  place.  S.  Kx.  Doc.  217.  49  Cong.  1  sess.  See  the  nies.sage  of  Dec  8.  ISSG, 
11.  E.\'.  Doc.  19,  49  Cong.  2  sess.,  with  a  suggestion  that  a  commission  i)e  anthor- 
i'/ed  by  law  to  take  i)erpetuating  proofs  of  losses  sustained  i)y  .Vmerican  fisher- 
men by  reason  of  the  action  of  the  Canadian  officials  during  the  season  then 
Just  past.  See.  also,  letter  of  Mr.  Manning,  Secretary  of  the  Treasury,  to  the 
Speaker  of  the  House,  on  the  fisheries  question.  II.  E.\.  Doc.  78,  49  Cong.  2  sess. 


810  XATTOXAL   jurisdiction:    TERRITORIAL   LIMITS.  [M^T. 

The  piincipal  (luestions  at  issue  between  the  two  Governments  are 
disolosetl  in  the  correspondence  which  immediately  follows." 

5.    rONTRO'  EKSIES  OF  1886-1888. 

§  167. 

"On  the  (Uh  instant  I  received  from  the  consul-general  of  the 
Case  of  the  "David     ^''''ted   States  at    Halifax   a   statement  of  the  seiz- 

J.  Adams;"  Mr.     ure  of  an  American  schooner,  the  Joseph  Story,  of 

Bayard's  note  of    (Jjoucester.    Mass.,    l)V    the    authorities    at    Baddeck. 

May  10,  1886.  ('ape  Hretou.  and  her  discharofe  after  a  detention  of 
twenty-four  hours. 

••  On  Saturday,  the  Sth  instant.  1  received  a  telegram  from  the  same 
official,  announcing  the  seizure  of  tiie  American  schooner  Dark!  ,/. 
Addi/is,  of  (;ioucc.<ter.  Mass..  in  the  Annapolis  Basin,  Nova  Scotia, 
and  that  tiie  vessel  had  been  jjlaced  in  the  custody  of  an  officer  of  the 
Canadian  steamer  Ldn.sdoirnc.  and  sent  t(»  St.  John,  New  Brunswick, 
for  trial. 

"As  both  of  these  seizures  took  place  in  closely  landlocked  harlx)rs, 
no  invasion  of  the  territorial  watt'rs  of  the  British  provinces,  with  the 
view  of  fishing  there,  could  well  Ix'  iuuigined;  and  yet  the  arrests  ap- 
pear to  have  been  based  upon  the  act  or  intent  of  fishing  Avithin  Avaters 
as  to  which,  under  the  provisions  of  the  treaty  of  1818  between  Great 
Britain  and  the  I'nited  States  of  America,  the  liberty  of  the  inhabit- 
ants of  the  Fnited  States  to  fish  has  been  renounced. 

••  It  would  be  superfluous  for  me  to  dwell  upon  the  desire  which.  T 
am  sure,  controls  those  resj)ectively  charged  with  the  administration 
of  the  (irovernments  of  (Jn'at  Britain  and  of  the-  I'nited  States  to 
jjrevent  occurrences  tending  to  create  exasperation,  or  unneighborly 
fe«'Iing.  or  collision  between  tlie  inhabitants  of  the  two  countries:  but. 
animated  with  this  sentiment,  the  time  seems  opportune  for  me  to 
submit  some  views  for  your  consideration,  which  I  confidently  hope 
will  lead  to  such  administration  of  tlie  laws  regulating  the  commer- 
cial interests  and  the  mercantile  marine  of  the  two  countries  as  may 
promote  good  feeling  and  nnitnal  ad\antage.  and  j)revent  hostility  to 
connnerce  under  the  gui^e  of  ))rotection  to  inshore  fisheries. 

"The  treaty  of  isls  is  betweeji  two  nations,  the  United  States  of 
America  and  (ireat  Britain,  who.  a>  tlie  contracting  parties,  can  alone 
apply  authoiMtative  interpi'etution  thereto,  or  enforce  its  provisions 
i)y  aj)j)ro|)riate  legislation. 


"  S<'('.  also,  the  following  Canadian  documents:  Corresiwndenee  relative  to 
ilif  rislnTJes  Question.  1S8.'»-1SS7.  presented  to  the  Canadian  Parliament, 
May  :;.  ivsT:  Animal  i:eiM»rt  of  the  Departiiieiit  of  Fisheries.  Dominion  of 
Canada,  for  the  .vear  188«j:  Speeial  Report  on  the  Fisheries  Protection  Service  of 
Canada.  18S«. 


§  167.]  THE    N'ORTHEASTERN    FISHERIES.  811 

"  The  discussion  prior  to  the  conclusion  of  the  treat}'  of  Washing- 
ton in  1871  was  productive  of  a  substantial  agreement  between  the 
two  countries  as  to  the  existence  and  limit  of  the  three  marine  miles 
within  the  line  of  which,  upon  the  regions  defined  in  the  treaty  of 
1818.  it  should  not  be  lawful  for  American  fishermen  to  take,  dry, 
or  cure  fish.  There  is  no  hesitancy  upon  the  part  of  the  Government 
of  the  United  States  to  proclaim  such  inhibition  and  warn  their  citi- 
zens against  the  infraction  of  the  treaty  in  that  regard,  so  that  such 
inshore  fishing  cannot  lawfully  be  enjoyed  by  an  American  vessel 
being  within  three  marine  miles  of  the  land. 

"  But  since  the  date  of  the  treaty  of  1818,  a  series  of  laws  and  regu- 
lations importantly  affecting  the  trade  between  the  North  American 
provinces  of  (Jreat  Britain  and  the  United  States  have  been,  respec- 
tively, adopted  by  the  two  countries,  and  have  led  to  amicable  and 
nnitually  l)eneficial  relations  between  their  respective  inhabitants. 

"  This  independent  and  yet  concurrent  action  by  the  two  Govern- 
ments has  effected  a  gradual  extension,  from  time  to  time,  of  the  pro- 
visions of  Article  I.  of  the  convention  of  July  3,  1815,  providing  for 
reciprocal  lilx'rty  of  connnerce  between  the  United  States  and  the  ter- 
litories  of  (ireat  Britain  in  Europe,  so  as  gradually  to  include  the 
colonial  possessions  of  Great  Britain  in  North  America  and  the  West 
Indies  within  the  results  of  that  treaty. 

"  President  Jackson's  proclamation  of  October  5,  1880,  created  a 
reciprocal  commercial  intercourse,  on  terms  of  perfect  equality  of 
flag.  l)etween  this  country  and  the  British  American  dependencies, 
by  repealing  the  navigation  acts  of  April  18,  1818,  Ma}'  15,  18'20,  and 
March  1,  1823.  and  admitting  British  vessels  and  their  cargoes  '  to 
an  entry  in  the  ports  of  the  ITnited  States  from  the  islands,  provinces, 
and  colonies  of  (Jreat  Britain  on  or  near  the  American  continent,  and 
north  or  east  of  tlie  United  States.'  These  connnercial  privileges  have 
since  received  a  large  extension  in  the  interests  of  propinquity,  and 
in  some  cases  favors  have  been  granted  by  the  United  States  without 
equivalent  concession.  Of  the  lattei'  class  is  the  exemption  granted 
ijy  the  shipping  act  of  June  20,  1884,  amounting  to  one-half  of  the 
regular  tonnage  dues  on  all  vessels  from  the  British  North  American 
and  West  Indian  possessions  entering  ports  of  the  United  States. 
Of  the  reci})rocal  class  are  the  arrangements  for  tr-jinsit  of  goods,  and 
the  i-emission,  by  proclamation,  as  to  certain  British  ports  and  places 
of  the  remainder  of  the  tonnage  tax,  on  eviden(;e  of  equal  treatment 
being  shown  to  our  vessels. 

•■  On  the  other  side.  British  and  colonial  legislation,  as  notably  in 
the  case  of  the  imperial  ship[)ing  and  navigation  act  of  June  26,  1849, 
has  contributed  its  share  toward  building  up  an  intimate  intercourse 
and  beneficial  traffic  between  the  two  countries  founded  on  mutual 
interest  and  convenience. 


.si -J  N-ATTOXAT^    JURTSDICTTOX  :    TERRITORIAL    LIMITS.  [§167. 

••  Tlu'Si'  aiianiroinents.  so  far  as  the  United  States  are  concerned, 
(U']HMi(l  ui)(>n  nniiiicipal  statute  and  upon  the  discretionary  powers  of 
the  Ivxecutive  thereunder. 

••  The  seizure  of  the  vessels  1  have  meritioned.  and  certain  pnblished 
•warniuL^s'  pur])<)rtin<r  to  have  been  issued  by  the  colonial  authori- 
ties, would  appi'ar  to  have  l>een  made  under  a  supj)osed  delegation  of 
juri-diclion  by  the  luiix-rial  (roverinnent  of  (Jreat  Britain,  and  to  be 
intended  to  include  authority  to  interpret  and  enforce  the  provisions 
of  the  ticnty  of  IMS.  to  which,  as  I  have  remarked,  the  United  States 
and  (ireat  liritain  are  the  contractino:  parties,  who  can  alone  deal 
res|)on<ib]y  with  (piestions  arising  thereunder. 

•■  The  effect  of  this  colonial  legislation  and  Executive  interpretation, 
if  executed  according  to  the  letter,  would  be  not  only  to  expand  the 
restrict  ions  and  renunciations  of  the  treaty  of  1818.  which  related 
-olely  to  inshore  fishery  within  the  three-mile  limit,  so  as  to  affect  the 
dee|)-s('a  fisheries,  the  right  to  which  remained  unqnestioned  and 
nuiuipairecl  for  the  enjoyment  of  the  citizens  of  the  United  States, 
but  fui'thcr  to  diminish  and  jiractically  to  destroy  the  privileges 
expressly  s»»cured  to  American  fishing  vessels  to  visit  those  inshore 
waters  for  the  objects  of  shelter,  repair  of  damages,  and  ptirchasing 
wood,  and  obtaining  water. 

"Since  1818.  certain  important  changes  have  taken  place  in  fishing 
in  the  regions  in  question,  which  have  materially  modified  the  condi- 
tions under  which  the  business  of  inshore  fishing  is  conducted  and 
whicli  must  have  great  weight  in  any  present  administration  of  the 
iit-aty. 

"•  Diving  and  curing  fish,  for  which  a  use  of  the  adjacent  shores 
was  at  one  time  reciuisite.  is  now  no  longer  followed,  and  modern 
invention  of  jirocesses  of  artificial  freezing,  and  the  employment  of 
\f<sels  of  a  larger  size.  ]>ermit  the  catch  and  direct  transportation  of 
li~^h  to  tJie  uiaik'ets  of  the  United  States  without  recourse  to  the  shores 
<-ontiguous  to  the  fishing  groinids. 

"The  mode  of  taking  fish  insliore  has  also  been  Avholly  changed. 
:in<l  fiom  the  highest  authority  on  such  subjects  I  learn  that  bait  is  no 
longer  needed  for  such  fishing,  that  ])urse-seines  have  been  substituted 
for  the  othei-  lut'thods  of  taking  mackerel,  and  that  by  their  employ- 
iiii'iit  the-e  fish  ai"e  now  readily  caught  in  deeper  waters  entirely 
•  Ntfiioi-  to  the  thi-ee-mile  line. 

"As  it  i-  aduiitted  that  the  (lee])-sea  fishing  was  not  under  consid- 
<  ration  in  the  negotiation  of  the  treaty  of  1818.  nor  was  affected 
ihiicby.  and  as  the  use  of  Iniit  for  inshore  fishing  has  passed  wholly 
into  ili-u-e.  the  reasons  which  may  have  formerly  existed  for  refusing 
Id  p'liiiit  American  fishermen  to  catch  or  procure  bait  within  the  line 
"f  A  marine  U'airue  from  the  shore,  lest  thev  should  also  use  it  in  the 


§  167.]  THE    NORTHEASTERN    FISHERIES.  813 

same  inhibited  Avaters  for  the  purpose  of  catching  other  fish,  no 
longer  exist. 

"  For  it  will,  I  believe,  be  conceded  as  a  fact  that  bait  is  no  longer 
needed  to  catch  herring  or  mackerel,  which  are  the  objcK'ts  of  inshore 
fishing,  but  is  used,  and  only  used,  in  deep-sea  fishing,  and,  therefore, 
to  prevent  the  purchase  of  bait  or  any  other  supply  needed  in  deep-sea 
fi^shing,  under  color  of  executing  the  provisions  of  the  treaty  of  1818, 
would  be  to  exj^and  that  convention  to  objects  wholly  beyond  its  pur- 
view, scope,  and  intent,  and  give  to  it  an  effect  never  contemplated  by 
either  party,  and  accompanied  by  results  unjust  and  injurious  to  the 
citizens  of  the  ITnited  States. 

''As,  therefore,  there  is  no  longer  any  inducement  for  American 
fishermen  to  '  dry  and  cure '  fish  on  the  interdicted  coasts  of  the 
Canadian  provinces,  and  as  bait  is  no  longer  used  or  needed  by  them 
[for  the  prosecution  of  inshore  fishing]  in  order  to  'take'  fish  in  the 
inshore  waters  to  which  the  treaty  of  1818  alone  relates,  I  ask  you  to 
consider  the  results  of  excluding  American  vessels,  duly  possessed  of 
permits  from  their  own  (Tovernment  to  touch  and  trade  at  Canadian 
ports  as  well  as  to  engage  in  deep-sea  fishing,  from  exercising  freely 
the  same  customary  and  reasonable  rights  and  privileges  of  trade  in 
the  ports  of  the  British  colonies  as  are  freely  allowed  to  British  a'cs- 
sels  in  all  the  ports  of  the  United  States  under  the  laws  and  regula- 
tions to  which  I  have  adverted. 

"Among  these  customary  rights  and  privileges  may  be  enumerated 
the  purchase  of  ship-supplies  of  every  nature,  making  repairs,  the 
sliipment  of  crews  in  whole  or  part,  and  the  purchase  of  ice  and  bait 
for  use  in  deep-sea  fishing. 

"■  Concurrently,  these  usual  rational  and  convenient  privileges  are 
freely  extended  to  and  are  fully  enjoyed  by  the  Canadian  merchant 
marine  of  all  occupations,  including  fishermen  in  the  ports  of  the 
United  States. 

"  The  question  therefore  arises  whether  such  a  construction  is  ad- 
missible as  would  convert  the  treaty  of  1818  from  being  an  instru- 
mentality for  the  protection  of  the  inshore  fisheries  along  the 
described  parts  of  the  British  American  coast  into  a  pretext  or  means 
of  obstructing  the  business  of  deep-sea  fishing  by  citizens  of  the 
United  States,  and  of  interrupting  and  destroying  the  commercial 
intercourse  that  since  the  treaty  of  1818,  and  independent  of  any 
treaty  whatever,  has  grown  up  and  now  exists  under  the  concurrent 
and  friendly  laws  and  mercantile  regulations  of  the  respective 
countries. 

"  I  may  recall  to  your  attention  the  fact  that  a  proposition  to 
exclude  the  vessels  of  the  United  States  engaged  in  fishing  from  car- 
rying also  merchandisQ  was  made  by  the  British  negotiators  of  the 


814  NATIONAL  jurisdiction:   territorial  limits.        r§  16^' 

treaty  of  1818,  but  Ihmii^  resisted  hy  the  American  negotiators  was 
aljandoned.  This  fact  would  seem  clearly  to  indicate  that  the  busi- 
ness of  fishing  did  not  then,  and  does  not  noAv,  disqualify  a  vessel 
from  also  trading  in  the  regulai  ports  of  entry. 

••  I  have  lx»en  led  to  offer  these  considerations  by  the  recent  seizures 
of  American  vessels  to  which  I  have  adverted  and  by  indications  of  a 
local  spirit  of  interpretation  in  the  Provinces,  affecting  friendly 
intercourse,  which  is,  I  firmly  believe,  not  warranted  by  the  terms  of 
the  stipulations  on  which  it  professes  to  rest.  It  is  not  my  purpose 
fo  prejudge  the  facts  of  the  cases,  nor  have  I  any  desire  to  shield  an}' 
American  vessel  from  the  consequences  of  violation  of  international 
obligation.  The  views  I  advance  may  prove  not  to  be  applicable  in 
every  feature  to  those  particular  cases,  and  I  should  be  glad  if  no 
case  whatever  were  to  arise  calling  in  question  the  good  understanding 
of  the  two  countries  in  this  regard  in  order  to  be  free  from  the  grave 
apprehensions  which  otherwise  I  am  unable  to  dismiss. 

"It  would  l)e  most  unfortunate,  and,  I  cannot  refrain  from  saying, 
most  unworthy,  if  the  two  nations  who  contracted  the  treaty  of  1818 
should  permit  any  questions  of  nuitual  right  and  duty  under  that 
convention  to  l>ecome  obscured  l)y  partisan  advocacy  or  distorted  by 
the  heat  of  local  interests.  It  cannot  but  be  the  common  aim  to  con- 
duct all  discussion  in  this  regard  with  dignity  and  in  a  self-respecting 
spirit,  that  will  show  itself  intent  upon  securing  equal  justice  rather 
than  unequal  advantage.  Comity,  courtesy,  and  justice  cannot,  I  am 
sure,  fail  to  l)e  the  ruling  motives  and  objects  of  discussion.  ^ 

•'  I  shall  1k'  most  haj^py  to  come  to  a  distinct  and  friendly  under- 
standing with  you.  as  the  representative  of  Her  Britannic  Majesty's 
(Tovernment.  which  will  result  in  such  a  definition  of  the  rights  of 
American  fishing-vessels  under  the  treaty  of  1818  as  shall  effectually 
])revent  any  encroachment  by  them  upon  the  territorial  waters  of  the 
British  })rovinces  for  the  purpose  of  fishing  Avithin  those  waters,  or 
trespassing  in  any  way  uix)n  the  littoral  or  marine  rights  of  the 
inhal)itants.  and.  at  the  same  time,  prevent  that  convention  from  l)eing 
improperly  exj^anded  into  an  instrument  of  discord  by  affecting  inter- 
ests and  accomplishing  results  wholly  outside  of  and  contrary  to  its 
ol)ject  and  intent,  by  allowing  it  to  become  an  agency  to  interfere 
with  and  perhaps  destroy  those  reciprocal  connnercial  privileges  ami 
facilities  between  neighboring  comnumities  which  contribute  so  im- 
])ortantly  to  their  peace  and  happiness.  It  is  obviously  essential  that 
the  administration  of  the  laws  regulating  the  Canadian  inshore  fish- 
ing should  not  be  conducted  in  a  punitive  and  hostile  spirit,  which 
can  only  tend  to  induce  acts  of  a  retaliatory  nature. 

"  Everytliing  will  ])e  done  by  the  United  States  to  cause  their  citi- 
/.ens  engaged  in  fishing  to  conform  to  the  oljligations  of  the  treaty, 


§  167.]  THE    NORTHEASTERN    FISHERIES.  815 

and  prevent  an  infraction  of  the  fishing  laws  of  the  British  prov- 
inces; but  it  is  equally  necessary  that  ordinary  commercial  inter- 
course should  not  be  interrupted  by  harsh  measures  and  unfriendly 
administration. 

"  I  have  the  honor,  therefore,  to  invite  a  frank  expression  of  your 
views  upon  the  subject,  believing  that,  should  any  differences  of 
opinion  or  disagreement  as  to  facts  exist,  they  will  be  found  to  be  so 
minimized  that  an  accord  can  be  established  for  the  full  protection  of 
Ihe  inshore  fishing  of  the  British  provinces,  without  obstructing  the 
open-sea  fishing  operations  of  the  citizens  of  the  United  States  or 
disturbing  the  trade  regulations  now  subsisting  between  the  coun- 
tries.'' 

Mr.  Bayard,  See.  of  State,  to  Sir  L.  West,  British  niiii.,  May  10.  1886,  For. 
Rel.  188H,  37:1 

"Although  without  reply  to  the  note  I  had  the  honor  to  address 

to  you  on  the  10th  instant,  in  relation  to  the  Cana- 

r.^  ayar   s  no  e      |^        fisheries  and  the  interpretation   of  the  treaty 

of  May  20,  1886.  .      i  1  ^  xi    •      • 

of  1818  between  the  United  States  and  Great  Britain 

as  to  the  rights  and  duties  of  the,  American  citizens  engaged  in  mari- 
time trade  and  intercourse  with  the  provinces  of  British  North 
xVmerica,  in  view  of  the  unrestrained,  and,  as  it  appears  to  me,  unwar- 
ranted, irregular,  and  severe  action  of  Canadian  officials  toward 
American  vessels  in  those  waters,  yet  I  feel  it  to  be  my  duty  to  bring 
Impressively  to  your  attention  information  more  recently  received  by 
me  from  the  United  States  consul-general  at  Halifax,  Nova  Scotia, 
in  relation  to  the  seizure  and  continued  detention  of  the  American 
schooner  David  J.  Adam^,  already  referred  to  in  my  previous  note, 
and  the  apparent  disposition  of  the  local  officials  to  use  the  most 
extreme  and  technical  reasons  for  interference  with  vessels  not 
engaged  in  or  intended  for  inshore  fishing  on  that  coast. 

"  The  report  received  by  me  yesterday  evening  alleges  such  action  in 
relation  to  the  vessel  mentioned  as  renders  it  difficult  to  imagine  it  to 
be  that  orderly  proceeding  and  '  due  process  of  law  '  so  well  known 
and  customarily  exercised  in  (ireat  Britain  and  the  United  States,  and 
which  dignifies  the  two  Governments,  and  gives  to  private  rights  of 
property  and  the  liberty  of  the  individual  their  essential  safeguards. 

"  By  the  information  thus  derived  it  would  appear  that  after  four 
several  and  distinct  visitations  by  boats'  crews  from  the  Lansdowne, 
in  Annapolis  Basin,  Nova  Scotia,  the  David  J.  Adams  Avas  summarily 
taken  into  custody  by  the  Canadian  steamer  Lansdowne  and  carried 
out  of  the  province  of  Nova  Scotia,  across  the  Bay  of  Fundy,  and  into 
the  port  of  St.  John,  New  BrunsAvick,  and,  Avithout  explanation  or 
hearing,  on  the  foUoAving  Monday,  May  10,  taken  back  again  b}'^  an 


81()  NATIONAL    .lUHISDlC'TION  :    TERRITORIAL    LIMITS.  [>5  167. 

ariiifd  ii't'w  to  I)i<i:l).v  in  Nova  Scolia.  Thai  in  Digby  the  paper 
allciiiHl  to  he  the  leiral  i)reeei)t  for  the  capture  and  detention  of  the 
xi'ssel  was  nailed  to  her  mast  in  snch  manner  as  to  prevent  its  con- 
tents ht'ing  read,  and  the  reciuest  of  the  captain  of  the  Daiml  J.  Adams 
and  of  the  United  States  consul-general  to  he  allowed  to  detach  the 
\\  i-it  from  the  mast  for  the  jMirpose  of  learning  its  contents  was  pos- 
it i\cly  refused  hv  the  i)r()vincial  official  in  charge.  Xor  was  the 
I'liitcd  States  consul-general  able  to  learn  from  the  commander  of  the 
Ldiisdoinw  the  nature  of  the  complaint  against  the  vessel,  and  his 
res|)ectful  api)lication  to  that  elfect  was  fruitless. 

••  In  so  extraordinary.  <'onfused.  and  irresponsible  a  condition  of 
affairs,  it  is  not  ])ossible  to  ascertain  with  that  accuracy  which  is  need- 
fid  in  matters  of  such  grave  importance  the  precise  grounds  for  this 
harsh  and  peremptory  ari-est  and  detention  of  a  vessel  the  property 
of  citizens  of  a  nation  with  whom  relations  of  peace  and  amity  were 
sup|)os('d  to  exist. 

•*  From  the  best  information,  however,  Avhich  the  United  States 
consul-general  was  enabled  to  obtain  after  ajjplication  to  the  prose- 
cuting officials,  he  reports  that  tlie  Durid  J.  Adiuns  was  seized  and  is 
low  held  (1)  for  alleged  violation  of  the  treaty  of  1818;  (2)  for 
alleged  violation  of  the  act  5i)  (tco.  III.;  (8)  for  alleged  violation  of 
the  colonial  act  of  Nova  Scotia  of  18()8;  and  (4)  for  alleged  violation 
of  the  act  of  isTO  and  also  that  of  1883,  both  Canadian  statutes. 

"  Of  tliesi'  allegations  there  is  but  one  which  at  present  I  press  upon 
yoiii'  immediate  consideration,  and  that  is  the  alleged  infraction  of  the 
treaty  of  ISlS. 

•■  I  i)eg  to  recall  to  your  attention  the  correspondence  and  action  of 
tliox'  respectively  chai-ged  with  the  administration  and  government  of 
(ireat  Britain  and  the  United  States  in  the  year  1870,  when  the  same 
iiitei-national  (|iiesti()ns  were  under  consideration  and  the  status  of 
law  was  not  essentially  different  from  what  it  is  at  present. 

"This  correspondence  discloses  the  intention  of  the  Canadian 
authorities  of  that  day  to  prevent  encroachment  uj)on  their  inshore 
tishing  gioiinds.  and  their  j)reparations  in  the  way  of  a  marine  jiolice 
foi-ce.  very  much  as  we  now  witness.  The  statutes  of  (ireat  Britain 
and  of  her  Canadian  provinces,  which  are  now  supposed  to  be 
invoked  as  authority  foi'  the  action  against  the  schooner  Ddcld  J. 
AihuHx.  wei-e  then  repoi'ted  as  the  basis  of  their  proceedings. 

••In  his  note  of  May  -Hk  1S70.  Mr.  (afterwards  Sir  Edward) 
riioi'uton.  the  P)i-itish  minister  at  tiiis  capital,  conveyed  to  Mr.  Fish, 
then  Secretai-y  of  State,  copies  of  the  orders  of  the  royal  Admiralty  to 
\  ice-Adiiiii"al  Wellesley.  in  command  of  the  naval  forces  'employed 
ill  iiiaiiitaiuing  oi-der  at  the  fisheries  in  the  neighborhood  of  the  coasts 
of  Canada," 


§  16T.]  THE    NORTHEASTERN    FISHERIES.  817 

"All  of  these  orders  directed  the  protection  of  Canadian  fishermen 
and  cordial  cooperation  and  concert  with  the  United  States  force  sent 
on  the  same  service  with  respect  to  American  fishermen  in  those 
waters.  Great  cantion  in  the  arrest  of  American  vessels  charged 
with  violation  of  the  Canadian  fishing  laws  was  scrupulously 
enjoined  upon  the  British  authorities,  and  the  extreme  importance  of 
the  commanding  officers  of  ships  selected  to  protect  the  fisheries  exer- 
cising the  utmost  discretion  in  paying  especial  attention  to  Lord 
Granville's  observation,  that  no  vessel  should  be  seized  unless  it  were 
evident,  and  could  be  clearly  proved,  that  the  offense  of  fishing  had 
been  committed,  and  the  vessel  captured  within  three  miles  of  land. 

''  This  caution  Avas  still  more  explicitly  announced  when  Mr.  Thorn- 
ton, on  the  11th  of  June,  1870,  wrote  to  Mr.  Fish : 

"■ '  You  are,  however,  quite  right  in  not  doubting  that  Admiral 
Wellesley,  on  the  receipt  of  the  later  instructions  addressed  to  him  on 
the  5th  ultimo,  will  have  modified  the  directions  to  the  officers  imder 
his  command  so  that  they  may  be  in  conformity  with  the  views  of  the 
A-dmiralty.  In  confirmation  of  this  I  have  since  received  a  letter 
from  Vice-Admiral  Wellesley  dated  the  30th  ultimo,  informing  me 
that  he  had  received  instructions  to  the  effect  that  officers  of  Her 
Majesty's  ships  employed  in  the  protection  of  the  fisheries  should  not 
seize  any  vessel  unless  it  were  evident,  and  could  be  clearly  proved, 
that  the  offense  of  fishing  had  been  committed  and  the  vessel  itself 
captured  within  three  miles  of  land.' 

"  This  understanding  between  the  two  Governments  wisely  and 
efficiently  guarded  against  the  manifest  danger  of  intrusting  the 
execution  of  powers  so  important  and  involving  so  high  and  delicate 
a  discretion  to  any  but  wise  and  responsible  officials,  whose  prudence 
and  care  should  be  commensurate  with  the  magnitude  and  national 
importance  of  the  interests  involved.  And  I  should  fail  in  my  duty 
if  T  did  not  endeavor  to  impress  you  with  my  sense  of  the  absolute  and 
instant  necessity  that  now  exists  for  a  restriction  of  the  seizure  of 
American  vessels  charged  with  violations  of  the  treaty  of  1818  to  the 
conditions  announced  by  Sir  Edward  Thornton  to  this  Government 
in  June,  1870. 

"  The  charges  of  violating  the  local  laws  and  commercial  regula- 
tions of  the  ports  of  the  British  Provinces  (to  which  T  am  desirous 
that  due  and  full  observance  should  be  paid  by  citizens  of  the  United 
States).  I  do  not  consider  in  this  note,  and  I  will  only  take  this  occa- 
sion to  ask  you  to  give  me  full  information  of  the  official  action  of 
the  Canadian  authorities  in  this  regard,  and  what  laws  and  regula- 
tions having  the  force  of  law.  in  relation  to  the  j^rotection  of  their 
inshore  fisheries  and  preventing  encroachments  thereon,  are  now  held 
by  them  to  be  in  force. 

H.  Doc.  551 52 


818  NATIONAL  jurisdiction:  territorial  limits.        [§167. 

••  Hut  I  trust  you  will  joiu  Avitli  nio  in  realizing  the  urgent  and 
essential  importance  of  restricting  all  arrests  of  American  fishing 
vessels  for  supposed  or  alleged  violations  of  the  convention  of  1818 
within  the  limitations  and  conditions  laid  down  by  the  authorities  of 
(rreat  Britain  in  1870.  to  wit:  That  no  vessel  shall  be  seized  unless  it 
IS  evident  and  can  be  clearly  proved  that  the  offense  of  fishing  has 
been  connnitted  and  the  vessel  itself  captured  within  three  miles  of 
land. 

■'  In  regard  to  the  necessity  for  the  instant  imposition  of  such 
restrictions  upon  the  arrest  of  vessels,  you  will.  I  believe,  agree  with 
me.  and  I  will  therefore  ask  you  to  procure  such  steps  to  be  taken  as 
shall  cause  such  orders  to  be  forthwith  })ut  in  force  under  the  author- 
ity of  Her  Majesty's  Government." 

Mr.  Ra.vju-d.  Soc  of  State,  to  Sir  L.  West,  British  inin..  May  20,  1886,  For. 
Rel.  1886,  .377. 

"  Since  the  conversation  I  had  the  honor  to  hold  with  'your  lord- 
Note  of  Mr.  Phelps    ^l^iP-  o^»  the  morning  of  the  29th  ultimo.,  I  have  re- 

to    Lord    Kose-    ceived  from  my  (Government  a  copy  of  the  report  of 

bery.  the  c(msul-general  of  the  United  States  at   Halifax, 

giving  full  details  and  dej)ositions  i-elative  to  the  seizure  of  the 
Dnrif]  ./.  Ada7nf<.  and  the  correspondence  between  the  consul-general 
and  the  colonial  authorities  in  i-eference  thereto. 

"■  The  report  of  the  consul-general  and  the  evidence  annexed  to  it 
appear  fully  to  sustain  the  point  submitted  to  your  lordsliip  in  the 
interview  al)ove  referred  to.  touching  the  seizure  of  this  vessel  by 
the  Canadian  officials. 

••  I  do  not  understand  it  to  be  claimed  by  the  Canadian  authorities 
that  the  vessel  seized  had  been  engaged  or  Avas  intending  to  engage 
in  fishing  within  any  limit  prohibited  by  the  treaty  of  1818. 

'■  The  occupation  of  the  vessel  was  exclusively  deep-sea  fishing,  a 
business  in  which  it  had  a  j)erfect  right  to  be  employed.  The  ground 
upon  which  the  ca]:)ture  was  made  was  that  the  master  of  the  vessel 
had  purchased  of  an  inhabitant  of  Nova  Scotia,  near  the  j)ort  of 
Digl)y.  in  that  i)rovince.  a  day  or  two  before,  a  small  quantity  of 
bait  to  be  used  in  fishing  in  the  dee))  sea.  outside  the  three-mile  limit. 

••  The  question  presented  is  whether,  under  the  terms  of  the  treaty 
and  the  construction  placed  ui)()n  them  in  practice  for  many  years  by 
the  Hritish  Government,  and  in  view  of  the  existing  relations  between 
the  Tnited  States  and  (Jreat  Rritain.  that  transaction  affords  a  suf- 
ficient reason  for  making  such  a  seizure  and  for  proceeding  under  it 
to  the  confiscation  of  the  vessel  and  its  contents. 

■•  I  am  not  uiuiware  that  the  Canadian  authoi'ities.  conscious,  appar- 
ently, tiiat  the  affirmative  of  this  proposition  could  not  be  maintained, 
deemed  it  advisable  to  supplement  it  with  a  charge  against  the  vessel 


§  167.]  THE    NORTHEASTERN    F1SHP:RTES.  819 

of  a  violation  of  the  Canadian  customs  act  of  iHS'-).  in  not  reporting 
her  arrival  at  Digby  to  the  customs  officer.  But  this  charge  is  not 
the  one  on  which  the  vessel  was  seized,  or  which  nuist  now  he  princi- 
pally relied  on  for  its  condenniation,  and  standing  alone  could  hardly, 
even  if  Avell  founded,  be  the  source  of  any  serious  controxersy.  It 
would  be  at  most,  nnder  the  circumstances,  only  an  accidental  and 
purely  technical  breach  of  a  custom-house  regulation,  l)y  which  no 
harm  was  intended,  and  from  which  no  harm  came,  and  would  in 
ordinary  cases  be  easily  condoned  by  an  apology,  and  perhaps  the 
payment  of  costs. 

"  But  trivial  as  it  is.  this  charge  does  not  appear  to  be  well  founded 
in  point  of  fact.  Digby  is  a  small  fishing  settlement  and  its  hai'bor 
not  defined.  The  vessel  had  moved  about  and  anchored  in  the  outer 
part  of  the  harbor,  having  no  business  at,  or  conmiunication  with 
Digby,  and  no  reason  for  reporting  to  the  officer  of  customs.  It 
f.ppears  by  the  report  of  the  consul-general  to  be  conceded  by  the 
customs  authorities  there  that  fishing  vessels  have  for  forty  years 
been  accustomed  to  go  in  and  out  of  the  bay  at  pleasure,  and  have 
never  been  required  to  send  ashore  and  report  when  they  had  no 
business  with  the  jiort,  and  made  no  landing;  and  that  no  seizure  had 
ever  before  been  made  or  claimed  against  them  for  so  doing. 

'"  Can  it  be  reasonably  insisted  under  these  circumstances  that  by 
the  sudden  adoption,  without  notice,  of  a  new  rule,  a  vessel  of  a 
friendly  nation  should  be  seized  and  forfeited  for  doing  what  all 
similar  vessels  had  for  so  long  a  ])eriod  been  allowed  to  do  without 
question  ? 

''  It  is  sufficiently  evident  that  the  claim  of  a  violation  of  the  cus- 
toms act  was  an  afterthought,  brought  forward  to  give  whatever 
added  strength  it  might  to  the  principal  claim  on  which  the  seizure 
had  been  made. 

"  Recurring,  then,  to  the  only  real  question  in  the  case,  whether  the 
vessel  is  to  be  forfeited  for  purchasing  bait  of  an  inhabitant  of  Xo\a 
Scotia,  to  be  used  in  lawful  fishing,  it  may  be  readily  admitted  that  i!" 
the  language  of  the  treaty  of  1818  is  to  be  interpreted  literally,  rather 
than  according  to  its  spirit  and  plain  intent,  a  vessel  engaged  in 
fishing  would  be  prohibited  from  entering  a  Canadian  i)ort  '  for  anv 
purpose  whatever"'  except  to  obtain  wood  or  water,  to  repair  dam- 
ijges,  or  to  seek  shelter.  Whether  it  would  be  liable  to  the  extreme 
penalty  of  confiscation  for  a  breach  of  this  ])rohibition  in  a  trifling 
an<l  harmless  instance  might  be  (|uite  another  ({uestion. 

''  Such  a  literal  construction  is  best  refuted  by  considering  its  prv- 
posterous  cons(Hiuences.  If  a  vessel  enters  a  i)ort  to  post  a  letter,  or 
send  a  telegram,  or  buy  a  newspaper,  to  obtain  a  j)hysician  in  case 
of  illness,  or  a  surgeon  in  case  of  accident,  to  land  or  bring  off  a 
passenger,  or  even  to  lend  assistance  to  the  inhabitants  in  fire,  flood, 


Sl'(1  national  jukisdiction  :   territorial  limits.        [§167. 

(•!•  iH'stihMKC.  it  \v(»iil(l.  upon  tliis  construction,  be  held  to  violate  the 
treatv  stipulations  maintained  between  two  enlightened  maritime  and 
iiio-t  friendly  nations,  whose  jwrts  are  freely  open  to  each  other  in 
all  other  j^laces  and  under  all  other  circumstances.  If  a  vessel 
is  not  engafred  in  fishing  she  may  enter  all  ports:  but  if  employed  in 
Hsjiing.  not  denied  to  lie  lawful,  she  is  excluded,  though  on  the  most 
innocent  errand.  She  may  buy  water,  but  not  food  or  medicine; 
wood,  but  not  coal.  She  may  repair  rigging,  but  not  purchase  a  new 
rope,  though  the  inhabitants  are  desirous  to  sell  it.  If  she  even 
entered  the  j)ort  (having  no  other  business)  to  report  herself  to  the 
custom-hoiiM'.  as  the  vessel  in  question  is  now  seized  for  not  doing. 
>he  would  be  e(iually  within  the  interdiction  of  the  treaty.  If  it  be 
said  these  are  extreme  instances  of  violation  of  the  treaty  not  likely 
to  be  insisted  on.  I  re])ly  that  no  one  of  them  is  more  extreme  than  the 
one  relied  upon  in  this  case. 

"  I  am  persuaded  that  your  lordship  will,  upon  reflection,  concur 
with  me  that  an  intention  so  narrow,  and  in  its  result  so  unreasonable 
and  so  unfair,  is  not  to  Ix'  attributed  to  the  high  contracting  parties 
who  entered  into  this  treaty. 

"  It  seems  to  me  clear  that  the  treaty  must  be  construed  in  accord- 
ance with  those  ordinaiw  and  well-settled  rules  applicable  to  all  writ- 
ten instruments,  which  without  such  salutary  assistance  mu'^t  con- 
stantly fail  of  their  pur])ose.  By  these  rules  the  letter  often  gives 
way  to  the  intent,  or  rather  is  only  used  to  ascertain  the  intent. 

■'  The  whole  document  will  be  taken  together,  and  will  be  consid- 
t'l-ed  in  connection  with  the  attendant  circumstances,  the  situation  of 
the  i)arties.  and  tlie  ol)ject  in  view,  and  thus  the  literal  meaning  of  an 
i-olated  clause  is  often  shown  not  to  l)e  the  meaning  really  understood 
or  intended. 

"  Fj)oii  tlioc  j)rincij)les  of  construction  the  meaning  of  the  clause 
in  (juestictn  does  not  >eem  doubtful.  It  is  a  treaty  of  friendship  and 
not  of  hostility.  Its  object  Avas  to  define  and  protect  the  relative 
riglit>  of  the  i)eoi)l('  of  the  two  countries  in  these  fisheries,  not  to  estab- 
lish a  system  of  nonintercourse  or  the  means  of  mutual  and  unnecessary 
amioyance.  It  >hoiild  be  judged  in  view  of  the  general  rides  of  inter- 
national comity  and  of  maritime  intercourse  and  usage,  and  its  restric- 
tion- con-ideri'd  in  the  light  of  the  purposes  then'  were  designed  to 
»'I'\e. 

"  Thus  regarded  it  appear>  to  me  <"lear  that  the  words  '  for  no  other 
piir|)OH'  whatever.*  as  emjiloyed  in  the  treaty,  mean  no  other  ])urpos(\s 
incon>i>tent  with  the  provisions  of  the  treaty,  or  jH-ejudicial  to  the 
intt'rt-t<  of  the  i)rovinces  or  their  inhabitants,  and  were  not  intended 
to  pifvcnt  the  entry  of  American  fishing  vessels  into  Canadian  jKU'ts 
foi-  iiiiioc.'iit  ami  mutually  InMieficial  jmrjioses.  or  unnecessarily  to 
I'-irici  the  free  and  friendly  intercourse  customary  between  all  civi- 


§167.]  THE    NORTHEASTERN    ETSHERTES,  821 

lized  maritime  nations,  and  especially  between  the  United  States  and 
Great  Britain.  Such.  I  can  not  l^ut  believe,  is  the  construction  that 
would  be  placed  upon  this  treaty  1)V  any  enlightened  court  of  justice. 

•'  But  even  were  it  conceded  that  if  the  treaty  was  a  i)rivate  con- 
tract, instead  of  an  international  one,  a  court  in  dealing  with  an  action 
upon  it  might  find  itself  hampered  by  the  letter  from  giving  eifect  to 
the  intent,  that  Avould  not  be  decisive  of  the  present  case. 

'•  The  interpretation  of  treaties  between  nations  in  their  intercourse 
with  each  other  proceeds  upon  broader  and  higher  considerations. 
The  question  is  not  what  is  the  technical  effect  of  words,  but  what  is 
the  construction  most  consonant  to  the  dignity,  the  just  interests,  and 
the  friendly  relations  of  the  sovereign  powers.  I  submit  to  your 
lordship  that  a  construction  so  harsh,  so  unfriendly,  so  unnecessary, 
and  so  irritating  as  that  set  up  by  the  Canadian  authorities  is  not  such 
as  Her  Majesty's  Government  has  been  accustomed  either  to  accord  or 
to  submit  to.  It  would  find  no  precedent  in  the  history  of  British 
diplomacy,  and  no  provocation  in  any  action  or  assertion  of  the 
Government  of  the  United  States. 

"  These  views  derive  great,  if  not  conclusive,  force  from  the  action 
of  the  British  Parliament  on  the  subject,  adopted  very  soon  after  the 
treaty  of  1818  took  effect,  and  continued  without  change  to  the  ])res- 
ent  time. 

"An  act  of  Parliament  (59  George  III.  chap.  38)  was  passed  June 
14.  1819,  to  provide  for  carrying  into  effect  the  provisions  of  the 
treaty.  After  reciting  the  terms  of  the  treaty,  it  enacts  (in  substance) 
that  it  shall  be  lawful  for  His  Majesty  by  orders  in  council  to  make 
such  regulations  and  to  give  such  directions,  orders,  and  instructions 
to  the  governor  of  Newfoundland  or  to  any  officer  or  officers  in  that 
Station,  or  to  any  other  persons  '  as  shall  or  may  be  from  time  to  time 
deemed  proper  and  necessary  for  the  carrying  into  effect  the  purposes 
of  said  convention  irith  relation  to  tlw  taking,  drying^  and  curing  of 
-fish  hy  inliahitants  of  tlie  United  States  of  America,  in  common  Avith 
British  subjects  within  the  limits  set  forth  in  the  aforesaid  convention.' 

"  It  further  enacts  that  any  foreign  A'essel  engaged  in  fishing,  oi 
preparing  to  fish,  within  three  marine  miles  of  the  coast  (not  author 
ized  to  do  so  by  treaty)  shall  be  seized  or  forfeited  upon  prosecution 
in  the  proper  court. 

•*  It  further  i)rovides  as  follows : 

"  '  That  it  shall  and  may  be  lawful  for  any  fisherman  of  the  said 
Ignited  States  to  enter  into  any  such  bays  or  harbors  of  his  Britannic 
Majesty's  dominions  in  America  as  are  last  mentioned  for  the  purpose 
of  shelter  and  repairing  damages  therein  and  of  purchasing  wood  and 
of  obtaining  water,  and  for  no  o'.her  purpose  whatever,  subject  never- 
theless to  such  restrictions  as  mav  bi>  necessary  to  ])revent  such  fisher- 
men of  the  said  United  States  from  taking,  drying,  or  curing  fish  in 


S'22  xATioNAT,  .Ti'iusnirTiox :   t?:rritorial  t.imtts.        [§167. 

tilt'  Miitl  l)a\>  or  li;ii-l>()r-.  or  in  any  other  manner  whatever  abusing 
the  ^aid  i)i-ivileii-e>  hy  tlie  said  treaty  and  this  act  reserved  to  them, 
and  as  sliall  for  that  pnrpose  he  imj)osed  hy  an  order  or  orders  to  be 
from  time  to  time  made  l)v  Tlis  Majesty  in  council  under  the  authority 
of  this  act.  and  by  any  reiruhitions  Avhicli  sliall  be  issued  by  the  gov- 
ernor or  ])erson  exercising  the  office  of  governor  in  any  such  j^arts  of 
Tlis  Majesty's  dominions  in  America,  under  or  in  pursuance  of  any 
such  an  ordcM*  in  council  as  aforesaid." 

••  Tt  further  ])rovi(les  as  follows: 

"  '  That  if  any  ])erson  or  ])ersons  upon  requisition  made  by  the  gov- 
(>rnor  of  Newfoundland,  or  the  ])erson  exercising  the  office  of  gov- 
ernor, or  by  any  governor  or  person  exercising  the  office  of  governor. 
in  anv  other  ])ai-ts  of  Tlis  Majesty's  dominions  in  America  as  afore- 
said, or  by  any  officer  or  officers  acting  under  such  governor,  or  person 
exercising  the  office  of  governor,  in  the  execution  of  any  orders  or 
instructions  from  TTis  Majesty  in  council,  shall  refuse  to  depart  from 
such  l)ays  or  harbors:  or  if  any  person  or  persons  shall  refuse  or 
neglect  to  conform  to  any  regulations  or  directions  which  shall  be 
made  or  given  for  the  execution  of  any  of  the  purposes  of  this  act: 
every  such  j)erson  so  refusing  or  otherwise  offending  against  this  act 
shall  forfeit  the  sum  of  t'200.  to  be  recovered.  &c.' 

"■  Tt  will  be  ])erc<Mved  from  these  extracts,  and  still  more  clearly 
from  a  j)erusal  of  the  entire  act.  that  while  reciting  the  language  of 
the  treaty  in  respect  to  the  purposes  for  which  American  fishermen 
may  ent(>r  T^ritish  ]:)orts.  it  provides  no  forfeiture  or  penalty  for  any 
such  entry  unless  accom))anied  either  (1)  by  fishing  or  preparing  to 
fish  within  the  ])rohibited  limits,  or  ('2)  by  the  infringement  of 
I'estrict ions  that  may  be  im])osed  by  orders  in  council  to  prevent  such 
fisjiing  or  the  drying  or  curing  of  fish,  or  tlie  abuse  of  privileges 
resei'vcd  l)y  the  ti-eaty.  or  ( •'> )  l)v  a  refusal  to  depart  from  the  bays  or 
harbors  u])on  ])ro])('r  r('(|uisition. 

••  It  thus  ])lainly  appears  that  it  was  not  the  intention  of  Parlia- 
ment, nor  it>  undei'standing  of  the  tn'aty.  that  any  other  entry  by 
an  American  fisliing  ve-sel  into  a  liritish  port  shouKl  be  regarded  as 
an  infraction  (»f  its  provisions,  or  as  affording  the  basis  of  proceed- 
ings against  it. 

••  No  other  act  of  l*arliament  for  the  carrying  out  of  this  treaty 
has  ever  been  ])ass(>d.  It  is  unnecessary  to  ])oint  out  that  it  is  not  in 
the  power  of  the  Canadian  Parliament  to  enlarge  or  alter  the  pro- 
visions of  the  act  of  the  Tm|)('rial  Parliament,  or  to  give  to  the  treaty 
cithci-  a  construction  or  a  legal  eflect  not  warranted  by  that  act. 

lint  until  the  etb)rt  which  T  am  informed  is  now  in  progress  in  the 

Caiiadiaii    Pai-bament   for  the  ])assage  of  a  new  act  on  the  subject, 

lit  induced  >iiic('  the  seizures  undei-  considei-ation,  T  do  not  understand 

ilial  any  -tatiilc  Im-  c\ci-  been  enacted  in  that  Parliament  which  at- 


§  167.]  THE    NORTHEASTERN    FISHERIES.  823 

tempts  to  o;ive  any  clifforent  coiistniction  or  eflFect  to  the  treaty  from 
that  given  by  the  act  of  59  George  TTT. 

"  The  only  provincial  statutes  which,  in  the  proceedings  against 
the  Da  rid  ■/.  Adam^,  that  vessel  has  thus  far  been  charged  with 
infringing  are  the  colonial  acts  of  18G8,  1870.  and  188-'^.  It  is  there- 
fore fair  to  presume  that  there  are  no  other  colonial  acts  applicable 
to  the  case,  and  T  know  of  none. 

"  The  act  of  1868,  among  other  provisions  not  material  to  this  dis- 
cussion, provides  for  a  forfeiture  of  foreign  vessels  '  found  fishing, 
or  ])reparing  to  fish,  or  to  have  been  fishing,  in  British  waters  Avithin 
three  marine  miles  of  the  coast,'  and  also  ])rovides  a  penalty  of  $400 
against  a  master  of  a  foreign  vessel  within  the  harbor  who  shall  fail 
to  answer  questions  put  in  an  examination  by  the  authorities.  Xo 
other  act  is  by  this  statute  declared  to  be  illegal :  and  no  other  penalty 
oi-  forfeiture  is  provided  for. 

"  The  very  extraordinary  provisions  in  this  statute  for  facilitating 
forfeitures  and  embarrassing  defense,  or  appeal  from  them,  not  mate- 
rial to  the  present  case,  would,  on  a  proper  occasion,  deserve  very 
serious  attention, 

"The  act  of  1883  has  no  application  to  the  case,  except  upon  the 
iioint  of  the  omission  of  the  vessel  to  report  to  the  customs  officer 
already  considered. 

"  It  results,  therefore,  that  at  the  time  of  the  seizure  of  the  Dnrid  J. 
Adams  and  other  vessels  there  Avas  no  act  whatever,  either  of  the  Brit- 
ish or  colonial  parliaments,  which  made  the  purchase  of  bait  by  those 
vessels  illegal,  or  provided  for  any  forfeiture,  penalty,  or  proceedings 
against  them  for  such  a  transaction,  and  even  if  such  purchase  could 
be  regarded  as  a  violation  of  that  clause  of  the  treaty  which  is  relied 
on,  no  law  existed  under  which  the  seizure  could  be  justified.  It  will 
not  be  contended  that  custom-house  authorities  or  colonial  courts  can 
seize  and  condemn  vessels  for  a  breach  of  the  stipulations  of  a  treaty 
when  no  legislation  exists  which  authorizes  them  to  take  cognizance 
of  the  subject,  or  invests  them  with  any  jurisdiction  in  the  premises. 
Of  this  obvious  conclusion  the  Canadian  authorities  seem  to  be  quite 
aAvare.  I  am  informed  that  since  the  seizures  they  have  pressed  or 
are  pressing  througli  the  Canadian  Parliament  in  much  haste  an  act 
which  is  designed  for  the  first  time  in  the  history  of  the  legislation 
under  this  treaty  to  make  the  facts  upon  which  the  American  vessels 
have  been  seized  illegal,  and  to  authorize  proceedings  against  them 
therefor. 

"  What  the  effect  of  such  an  act  will  be  in  enlarging  the  provisions 
of  an  existing  treaty  between  the  United  States  and  Great  Britain 
need  not  be  considered  here.  The  question  under  discussion  depends 
upon  the  treaty  and  upon  such  legislation  warranted  by  the  treaty  as 
existed  when  the  seizures  took  place. 


8'24  XATTONAT.    JURTSDTCTTON  :    TERRTTORTAL    LIMITS.  [§  167. 

"  Tho  practical  construct  ion  given  to  the  treaty  down  to  the  present 
time  has  boon  in  entire  accord  with  the  conchisions  thus  deduced  from 
the  act  of  Parliament.  The  British  (lovernment  has  repeatedly  re- 
fused to  allow  interference  with  American  fishing  vessels,  unless  for 
illegal  fishing,  and  has  given  explicit  orders  to  the  contrary. 

"  On  the  •2r)th  of  ^May.  1870,  Mr.  Thornton,  the  British  minister  at 
AVashington,  connnunicated  officially  to  the  Secretary  of  State  of  the 
United  States  coi)ies  of  the  orders  addressed  by  the  British  admir- 
alty to  Admiral  AVellesley,  conunanding  Her  Majesty's  naval  forces 
on  the  North  American  station,  and  of  a  letter  from  the  colonial 
department  to  the  foreign  office,  in  order  that  the  Secretary  might 
'  see  the  nature  of  the  instructions  to  be  given  to  Her  Majesty's  and 
the  Canadian  officers  employed  in  maintaining  order  at  the  fisheries 
in  the  neighborhood  of  the  coasts  of  Canada.'  Among  the  docu- 
ments thus  transmitted  is  a  letter  from  the  foreign  office  to  the  secre- 
tary of  the  admiralty,  in  which  the  following  language  is  contained: 

"'  •  The  Canadian  government  has  recently  determined,  with  the 
concurrence  of  Her  Majesty's  ministers,  to  increase  the  stringency  of 
tlie  existing  ])ractice  of  dispensing  with  the  warnings  hitherto  given, 
and  seizing  at  once  any  vessel  detected  in  violating  the  law. 

*' '  In  view  of  this  change  and  of  the  questions  to  Avhich  it  may  give 
rise,  I  am  directed  by  Lord  Granville  to  request  that  you  will  move 
their  lordshi})s  to  instruct  the  officers  of  Her  Majesty's  ships  employed 
in  the  protection  of  the  fisheries  that  they  are  not  to  seize  any  vessel 
unless  it  is  evident  and  can  be  clearly  proved  that  the  offense  of  fish- 
ing has  been  committed  and  the  vessel  itself  captured  Avithin  three 
miles  of  land.' 

••  In  the  lettor  from  the  lords  of  the  admiralty  to  Vice-Admiral 
^^\']leslcy  of  May  .").  1870.  in  accordance  with  the  foregoing  request, 
and  transmitting  the  lettei-  above  quoted  from,  there  occurs  the  fol- 
lowing language : 

My  loi-ds  desire  me  to  remind  you  of  the  extreme  importance  of 
conunanding  officei's  of  the  ships  selected  to  protect  the  fisheries  exer- 
cising the  utmost  discretion  in  carrying  out  their  instructions,  paying 
special  attention  to  Lord  ( Jranvill(>'s  observation  that  no  vessel  should 
be  seized  unless  it  is  evident  and  cau  b-  clearly  proved  that  the  oU'ense 
of  fishing  has  been  connnitted.  and  that  the  vessel  is  captured  within 
thi-ee  miles  of  land." 

"  Lord  (iranville,  in  transmitting  to  Sir  John  Young  the  aforesaid 
instructions,  makes  use  of  the  following  language: 

Ilcr  Majesty's  (Jovernment  do  not  doubt  that  your  ministers  will 
■..'j:viM'  with  them  i'.s  to  the  propriety  of  these  instructions,  and  will 
iiive  (■()n-e-i)()iiding  instructions  to  the  ves-^cls  employed  l)y  them.' 

••  The-e    iii-triMtions    were   again    offici-dl\'    stated    by    the    British 


S  167.]  THE    NORTHEASTERN    FISHERTER.  825 

minister  at  Washington  to  the  Secretaiv  of  State  of  the  Uiiited  States 
in  a  letter  dated  June  11,  1870. 

"Again,  in  February,  1871.  Lord  Kiniberly.  cohjuinl  secretary, 
wrote  to  the  Governor-Cieneral  of  Canaihi  as  foHows: 

"  '  The  exchision  of  American  fishermen  from  resorting  to  Cana- 
dian ports,  except  for  the  purpose  of  shelter,  and  of  repairing  damages 
therein,  purchasing  Avood,  and  of  obtaining  water,  might  be  war- 
ranted by  the  letter  of  the  treaty  of  1818,  and  by  the  terms  of  the 
imperial  act  59  (leorge  III,  chap.  H8.  but  Her  Majesty's  Government 
feel  l)ound  to  state  that  it  seems  to  them  an  extreme  measure,  incon- 
sistent with  the  general  policy  of  the  P^mpire.  and  they  are  disposed 
to  concede  this  point  to  the  United  States  Government  under  such 
restrictions  as  may  be  necessary  to  prevent  suniggling.  and  to  guard 
against  any  substantial  invasion  of  the  exclusive  rights  of  fishing 
which  may  be  reserA'ecl  to  British  subjects.' 

"'And  in  a  subsecpient  letter  from  the  same  source  to  the  Governor- 
General,  the  following  language  is  used : 

"  '  I  think  it  right,  however,  to  add  that  the  responsibility  of  deter- 
mining what  is  the  true  construction  of  a  treaty  made  by  Her  Majesty 
with  any  foreign  jjower  nuist  remain  with  Her  Majesty's  Govern- 
ment, and  that  the  degree  to  which  this  country  would  make  itself  a 
party  to  the  strict  enforcement  of  the  treaty  rights  may  depend  not 
only  on  the  literal  construction  of  the  treaty,  but  on  the  moderation 
and  reasonableness  with  which  these  rights  are  asserted.' 

'•  I  am  not  aware  that  any  modification  of  these  instructions  or  any 
different  rule  from  that  therein  contained  has  ever  been  adopted  or 
sanctioned  by  Her  Majesty's  Government. 

"  Judicial  authority  upon  this  question  is  to  the  same  effect.  That 
tlie  purchase  of  bait  by  American  fishermen  in  the  provincial  ])orts 
has  been  a  connnon  practice  is  well  known.  But  in  no  case,  so  far  as 
I  can  ascertain,  has  a  seizure  of  an  American  vessel  ever  been  enforced 
on  the  ground  of  the  purchase  of  bait,  or  of  any  other  supplies.  On 
the  hearing  before  the  Halifax  Fisheries  Connnission  in  1877  this 
question  was  discussed,  and  no  case  could  be  produci'd  of  any  such 
condemnation.  Vessels  shown  to  have  been  coiulenmed  were  in  all 
cases  adjudged  guilty,  either  of  fishing,  or  preparing  to  fish,  within 
the  prohibited  limit.  And  in  the  case  of  the  White  Fairn.  tried  in 
the  admiralty  court  of  Xew  Brunswick  before  Judge  Hazen  in  1870. 
I  understand  it  to  have  been  distinctly  held  that  the  purchase  of  bait, 
unless  proved  to  have  been  in  preparation  for  illegal  fishing,  was  not 
a  violation  of  the  treaty,  nor  of  any  existing  law,  and  afforded  no 
ground  for  proceedings  against  the  vessel. 

'•  But  even  were  it  possible  to  justify  on  the  part  of  the  Canadian 
authorities  the  adoption  of  a  construction  of  the  treaty  entirely  dif- 
ferent from  that  which  lins  nlways  heretofore  j)revailed.  and  to  de- 


82<)  NATIONAL    JUTJTSDTCTTOX  :    TERRITORIAL    LIMITS.  [§  167. 

chu't'  tho.>^('  at'ts  criininal  which  liave  hitherto  been  regarded  as  inno- 
cent. ii])()n  ohvions  gronnds  of  reason  and  justice,  and  upon  common 
principles  of  comity  to  the  United  States  (Government,  previous 
notice  should  have  been  given  to  it  or  to  the  American  fishermen  of 
the  new  and  stringent  instructions  it  was  intended  to  enforce. 

"If  it  Avas  the  intention  of  Tier  Majesty's  (Tovernment  to  recall  the 
instructions  which  I  have  shown  had  been  previously  and  so  explic- 
itly given  relative  to  tbe  interference  with  American  vessels,  surely 
notice  should  have  been  given  accordingly. 

"  The  United  States  have  just  reason  to  complain,  even  if  these 
restrictions  could  be  justified  by  the  treaty  or  by  the  acts  of  Parlia- 
ment passed  to  carry  it  into  elTect.  that  they  should  be  enforced  in  so 
harsh  and  unfriendly  a  manner  without  notice  to  the  Government  of 
the  change  of  policy,  or  to  the  fishermen  of  the  new  danger  to  which 
they  were  thus  exposed. 

'■  In  any  view,  therefore,  which  it  seems  to  me  can  be  taken  of  this 
(juestion.  I  feel  justified  in  pronouncing  the  action  of  the  Canadian 
authorities  in  seizing  and  still  retaining  the  Darid  J.  Adams,  to  be 
not  only  unfriendly  and  discourteous,  but  altogether  unwarrantable. 

■*  The  seizure  Avas  nnich  aggravated  by  the  manner  in  which  it  was 
carried  into  effect.  It  appears  that  four  several  visitations  and 
searches  of  the  vessel  were  made  by  boats  from  the  Canadian  steamer 
Ldnsdoiritc.  in  Annapolis  Basin.  Nova  Scotia.  The  Adam.^  was 
finally  taken  into  custody  and  carried  out  of  the  province  of  Nova 
Scotia,  across  the  Bay  of  Fundy.  and  into  the  port  of  St.  John.  New 
Brunswick,  and  without  exjilanation  or  hearing,  on  the  following 
Monday.  May  10.  taken  back  by  an  armed  crew  to  Digby.  Nova 
Scotia.  That,  in  Digln'.  the  ])aper  alleged  to  i)e  the  legal  precept  for 
the  capture  and  detention  of  the  vessel  was  nailed  to  her  mast  in  such 
manner  as  to  j)revent  its  contents  being  read,  and  the  request  of  the 
(■a|itain  of  the  Darid  ./.  Adams  and  of  the  United  States  consul- 
general  to  be  allowed  to  detach  the  writ  from  the  mast  for  the  pur- 
pose of  learning  its  contents  was  positively  refused  l)y  the  provincial 
official  in  charge.  Noi-  was  tlu'  United  States  consul-general  able 
to  learn  from  the  conunander  of  the  L<ni.sdoa'ne  the  nature  of  the 
com])laint  against  the  vessel,  and  his  respectful  application  to  that 
effect  was  fruitless. 

••  From  all  the  circumstances  attending  this  case,  and  otlier  recent 
cases  like  it.  it  seems  to  me  very  apj)arent  that  the  seizure  was  not 
made  for  the  pur|)ose  of  enforcing  any  right  or  redressing  any  wrong. 
-Vs  I  liave  Ix'fore  remarked,  it  is  not  jji-etended  that  the  vessel  had 
been  engaged  in  fishing,  or  Avas  intending  to  fish  in  the  prohibited 
waters,  or  that  it  had  done  or  was  intending  to  do  any  other  inju- 
lictii-  act.  It  was  proceeding  upon  its  regular  and  lawful  business  of 
li-biiig  ill  tjif  d(M'|)  -cji.      It  hi'd   i-cccivcd   no  request,  and  of  course 


§  167.]  THE    NORTHEASTERN    FISHERIES.  827 

could  have  disregarded  no  request,  to  depart,  and  was,  in  fact,  depart- 
ing when  seized ;  nor  had  its  master  refused  to  answer  any  questions 
put  by  the  authorities.  It  had  viohited  no  existing  law,  and  had 
incurred  no  penalty  that  any  known  statute  imposed. 

"  It  seems  to  me  impossible  to  escape  the  conclusion  that  this  and 
other  similar  seizures  were  made  by  the  Canadian  authorities  for  the 
delil)erate  purjjose  of  harassing  and  embarrassing  the  American  fish- 
ing vessels  in  the  pursuit  of  their  lawful  employment.  And  the 
injury,  which  would  have  been  a  serious  one,  if  committed  under  a 
mistake,  is  very  much  aggravated  by  the  motives  which  appear  to 
have  prompted  it. 

''  I  am  instructed  by  my  Government  earnestly  to  protest  against 
these  proceedings  as  Avholly  unwarranted  by  the  treaty  of  1818,  and 
altogether  inconsistent  with  the  friendly  relations  hitherto  existing 
between  the  United  States  and  Her  Majesty's  Government ;  to  request 
that  the  Darul  J.  Adams,  and  the  other  American  fishing  vessels  now 
under  seizure  in  Canadian  ports,  be  immediately  released,  and  that 
proper  orders  may  be  issued  to  prevent  similar  proceedings  in  the 
future.  And  I  am  also  instructed  to  inform  you  that  the  United 
States  will  hold  Her  Majesty's  Government  resj)onsible  for  all  losses 
which  nuiy  be  sustained  by  American  citizens  in  the  dispossession  of 
their  ])roperty  growing  out  of  the  search,  seizure,  detention,  or  sale 
of  their  vessels  lawfully  within  the  territorial  waters  of  British 
North  America. 

"  The  real  source  of  the  difficulty  that  has  arisen  is  well  under- 
stood. It  is  to  be  found  in  the  irritation  that  has  taken  place  among 
a  portion  of  the  Canadian  people  on  account  of  the  termination  by 
the  United  States  Government  of  the  treaty  of  Washington  on  the 
1st  of  July  last,  whereby  fish  imported  from  Canada  into  the  United 
States,  and  which  so  long  as  that  treaty  remained  in  force  was 
admitted  free,  is  now  liable  to  the  import  duty  provided  by  the 
general  revenue  laws,  and  the  opinion  appears  to  have  gained  ground 
in  Canada  that  the  United  States  may  be  driven,  by  harassing  and 
annoying  their  fishermen,  into  the  adoption  of  a  new  treaty  by  which 
Canadian  fish  shall  be  admitted  free. 

*'  It  is  not  iKH-essarv  to  say  that  this  scheme  is  likely  to  prove  as 
mistaken  in  ])olicy  as  it  is  indefensible  in  ])rincii)le.  In  terminat- 
ing the  treaty  of  AVashington  the  United  vStates  were  simply  exer- 
cising a  right  expressly  reserved  to  both  jxirties  by  the  treaty  itself, 
and  of  the  exercise  of  Avhich  by  either  pai'ty  neither  can  complain. 
They  will  not  be  coerced  by  wanton  injury  into  the  making  of  a 
new  one.  Xor  Avould  a  negotiation  that  had  its  origin  in  nnitual  irri- 
tation be  })romising  of  success.  The  (piestion  now  is.  not  what 
fre>-h  treaty  may  or  might  be  desirable,  but  what  is  the  true  and  just 


S'iS  NATIONAL' JURISDirTlON  :    TERRTTORTAL    LIMITS.  [|5  l^T. 

i()n>iructi()ii.  as  between  the  two  nations,  of  the  treaty  that  ah-eady 
exists. 

•The  (iovei-nnient  of  the  United  States.  ai)proachin^  this  <|nes- 
lion  in  tlie  most  friendly  spirit,  cannot  donbt  that  it  Avill  he  met 
hy  Her  Majesty's  (Jovernment  in  the  same  spirit,  and  feels  every 
contidenc-e  that  the  action  of  Her  Majesty's  (iovernment  in  the  i:)rein- 
ises  will  he  such  as  to  maintain  the  cordial  I'elations  between  the  two 
countries  that  have  so  lonir  hai)pily  j)i-evailed.*" 

Mr.  l'lieli»s.  mill,  to  KiijrlaiKl.  to  Lord  Hosebcrry.  foreign  se<'retar.v.  June 
2.  issc.  For.  Kel.  issc.  :',:;. 

Iieft-rriiijr  to  this  note,  and  the  materials  of  which  it  was  comi>osed.  Mr. 
Bayard  said:  "The  views  and  ai-gunients  you  adduce  are  fully  in 
acvord  with  the  instructions  jilready  sent  you.  and  are  so  ably 
advanced  and  enforced  that  I  have  for  the  present,  and  pending  Lord 
IJosehery's  reply,  nothing  further  to  suggest  on  these  points."  (Mr. 
Bayard.  Set-,  of  State,  to  Mr.  IMielps.  niin.  to  England.  No.  ;i28.  .Tune 
IS.  LKSC,.     For.  Hel.  ISSC.  :^4»i.  I 

••  The  undersigned  having  had  his  attention  called  by  your  excel- 
Canadian     reply:     '^'"^T  to  a  connuunication  from  Mr.   Bayard.  Secre- 

Report  of  Min-     tarv  of  State  of  the  ITnited   States,  dated  the   10th 

ister  of  Marine     ]May.   and    addressed    to    Her    Majesty's   minister   at 

and  Fisheries.  Washington,  antl  to  a  further  comnnmication  from 
Mr.  Bayard,  dated  the  'iOth  May  instant,  in  reference  to  the  seizure  of 
the  American  Hshing  vessel  Dtn'U]  ./.  Adaiitx.  begs  leave  to  submit 
the  following  observations  thereon: 

"  Your  excellency's  Government  fully  appreciates  and  reciprocates 
Mr.  Bayard's  desire  that  the  administration  of  the  laws  regidating 
the  comnu'rcial  interests  and  the  mercantile  marine  of  the  two  coun- 
tries might  be  such  as  to  j;romote  good  feeling  and  mutual  advantage. 

"  Canada  has  given  many  indisputable  proofs  of  an  earnest  desire 
to  cultivate  and  extend  her  connnei-cial  relations  with  the  United 
States,  and  it  may  not  be  without  advantage  to  recapitulate  some  of 
tho>e  proofs. 

■•  For  many  years  before  1^54  the  maritime  ])r()vinces  of  British 
Xortli  America  had  (•omj)lained  to  Her  Majesty's  (Jovernment  of  the 
continuous  invasion  of  their  inshore  fislieries  (sometimes  accom- 
panied, it  \\a>  alleged,  with  violence)  by  American  fishermen  and 
lishing  \"essels. 

"  Much  ii'ritation  naturally  en.sued.  and  it  Avas  felt  to  be  expedient 
by  both  (Jovernments  U)  \n\i  an  end  to  this  unseendy  state  of  things 
by  treaty,  and  at  the  same  time  to  arrange  for  eidarged  trade  relations 
between  the  United  States  and  the  British  North  American  colonies. 
'!"hc  i-eciprocity  treaty  of  18.")4  was  the  residt.  by  which  were  not  only 
oiii-  in-liorc  fi-heries  o])ened  to  the  Americans,  but  provision  was 
;ii:ii|c   U)V  ilic  fi-ee  interchange  of  the  ])rincipal  natural  products  of 


?  KJT.  I  THE    NORTHEASTKRN    F1.SHKKIE8.  829 

both  countries,  iiiclii(liiig  those  of  the  sea.  Peace  was  preserxed  on 
our  waters,  and  the  vohniie  of  international  trade  steadily  increased 
during  the.  existence  of  this  treaty,  and  until  it  was  terminated  in 
1860),  not  by  Great  Britain,  but  by  the  United  States. 

"  In  the  following  year  Canada  (then  become  a  dominion  and 
united  to  Xova  Scotia  and  Xew  Brunswick)  Avas  thrown  back  on  the 
convention  of  1818,  and  obliged  to  fit  out  a  marine  police  to  enforce 
ihe  laws  and  defend  her  rights,  still  desiring,  however,  to  cultivate 
friendly  relations  with  her  great  neighbor,  and  not  too  suddenly  to 
deprive  the  American  fishermen  of  their  accustomed  fishing  grounds 
and  means  of  livelihood.  She  readily  acquiesced  in  the  i)rop()sal  of 
Her  Majesty's  (lovernment  for  the  temporary  issue  of  annual  licenses 
to  fish  on  payment  of  a  moderate  fee.  Your  excellency  is  aware  of 
(he  failure  of  that  scheme.  A  few  licenses  were  issued  at  first,  but 
(he  applications  for  them  soon  ceased,  and  the  American  fishermen 
persisted  in  forcing  themselves  into  our  waters  '  without  leave  or 
iicense.' 

"  Then  came  the  recurrence,  in  an  aggravated  form,  of  all  the 
troubles  which  had  occurred  anterior  to  the  reciprocity  treaty.  There 
were  invasions  of  our  waters,  personal  conflicts  between  our  fishermen 
and  American  crews,  the  destruction  of  nets,  the  seizure  and  con- 
demnation of  vessels,  and  intense  consequent  irritation  on  both  sides. 

"  This  Avas  happily  put  an  end  to  by  the  Washington  treaty  of  1871. 
In  the  interval  between  the  termination  of  the  first  treaty  and  the 
ratification  of  that  by  which  it  was  eventually  replaced,  Canada  on 
several  occasions  pressed,  without  success,  through  the  British  min- 
ister at  AVashington,  for  a  renewal  of  the  reciprocity  treaty  or  for  the 
)iegotiation  of  another  on  a  still  wider  basis. 

•■  AVhen  in  1874  Sir  Edward  Thornton,  then  British  minister  at 
Washington,  and  the  late  Hon.  George  Brown,  of  Toronto,  were 
aj^pointed  joint  plenipotentiaries  for  the  purpose  of  negotiating  and 
concluding  a  treaty  relating  to  fisheries,  commerce,  and  navigation, 
a  provisional  treaty  was  arranged  by  them  with  the  United  States 
Government,  but  the  Senate  decided  that  it  was  not  expedient  to 
ratify  it,  and  the  negotiation  fell  to  the  ground. 

"The  treatv  of  Washington,  while  it  failed  to  restore  the  pi'ovi- 
sions  of  the  treaty  of  1854,  for  reciprocal  fi-ee  trade  (except  in  fish), 
at  least  kept  the  peace,  and  there  was  tranquillity  along  our  shores 
until  fluly,  1885,  when  it  was  terminated  again  by  the  United  States 
Government  and  not  by  Great  Britain. 

"  With  a  desire  to  show  that  she  wished  to  be  a  good  neighbor,  and 
in  order  to  prevent  loss  and  disappointment  on  the  part  of  the 
United  States  fishermen  by  their  sudden  exclusion  from  her  waters 
in  the  middle  of  the  fishing  season,  Canada  continued  to  allow  them, 
for  six  months,  all  the  advantages  which  the  rescinded  fishery  clauses 


880  NATIONAL  jurisdiction:   territorial  limits.       [§167. 

had  previously  o-ivcn  tluMu.  although  her  people  i-eceived  from  the 
Fuited  States  noue  of  the  corresponding  advantages  which  the  treaty 
of  l.sTl  had  declared  to  be  an  equivalent  for  the  benefits  secured 
thereby  to  the  American  fishermen. 

"  The  I'resident.  in  return  for  this  courtesy,  promised  to  recom- 
mend to  Congi'ess  the  appointment  of  a  joint  commission  of  the  two 
(lovernments  of  the  United  Kingdom  and  the  United  States  to  con- 
sider the  fishery  ((uestion.  with  permission  also  to  consider  the  whole 
state  of  trade  relations  between  the  United  States  and  Canada, 

'•  Tliis  ])romise  was  fulfilled  by  the  President,  but  the  Senate  re- 
jected his  reconnnendation  and  refused  to  sanction  the  connnission. 

"•  Under  these  circumstances  Canada,  having  exhausted  every  effort 
to  procure  an  amicable  arrangement,  has  l)een  driven  again  to  fall 
back  upon  the  convention  of  ISbS,  the  i)rovisions  of  which  she  is  now 
enforcing  and  will  enforce,  in  no  })unitive  or  hostile  spirit  as  Mr. 
Bayard  sui)poses,  but  solely  in  j)r()tection  of  her  fisheries,  and  in  vin- 
dication of  the  right  secured  to  hei-  liy  treaty. 

"  Mr.  Bayard  suggests  that  '  the  treaty  of  1818  was  between  two 
nations — the  United  States  of  America  and  (ireat  Britain — who,  as 
the  contra'-ting  i)arties.  can  alone  apply  authoritative  interpretation 
thereto,  and  enforce  its  provisions  by  ai)proj)riate  legislation.' 

"As  it  may  be  inferred  from  this  statement  that  the  right  of  the 
Parliament  of  Canada  to  make  enactments  for  the  protection  of  the 
fisheries  of  the  Dominion,  and  the  power  of  the  Canadian  officers 
to  protect  those  fisheries,  are  questioned,  it  may  be  well  to  state  at 
the  outset  the  grounds  upon  which  it  is  conceived  by  the  undersigned 
that  the  jurisdiction  in  question  is  clear  beyond  a  doubt. 

"  1.  In  the  first  plac(>  the  undersigned  would  ask  it  to  be  reniem- 
V)ered  that  the  extent  of  the  jurisdiction  of  the  l*arliament  of  Canada 
is  not  limited  (nor  was  that  of  the  i)rovinces  before  the  union)  to 
the  seacoast.  l)ut  extends  for  three  marine  miles  from  the  shore  as 
to  all  matters  over  which  any  legislative  authority  can  in  any  coun- 
try be  exercised  within  that  space.  The  legislation  which  has  been 
adopted  on  this  subject  by  the  Parliament  of  Canada  (and  pre- 
viously to  confederation  by  the  ])rovinces)  does  not  reach  beyond 
that  limit.  It  may  Ije  assumed  that,  in  the  abseiice  of  any  treaty 
stipulation  to  the  contrary,  this  right  is  so  well  recognized  and  es- 
tablished by  both  Pn'itish  and  American  law  that  the  grounds  on 
which  it  is  suppoi'ted  need  not  be  stated  here  at  large.  The  under- 
signed will  merely  add,  therefore,  to  this  statement  of  the  position, 
that  so  far  from  the  right  being  limited  by  the  convention  of  1818 
that  convention  ex])ressly  recognizes  it. 

••After  i-enouncing  the  liberty  to  "take,  cure,  or  dry  fish  on  or 
witliin  tln-ee  marine  miles  of  any  of  the  coasts,  bays,  creeks,  or  har- 
bor- of  His  Majesty's  dominions  in  America,'  there  is  a  stipulation 


§  167.]  THE    NORTHEASTERN    FISHERIES.  831 

that  while  American  fishing  vessels  shall  be  iuliuitted  to  enter  such 
bays,  &c.,  "  foi-  the  purpose  of  shelter  and  of  rej^airing  damages 
therein,  of  purchasing  wood,  and  of  obtaining  water,  they  shall  be 
under  such  restrictions  as  ma}^  be  necessary  to  prevent  their  taking, 
curing,  or  drying  fish  therein,  or  in  any  other  manner  whatever  abus- 
ing the  privileges  reserved  to  them.' 

"  2.  Appropriate  legislation  on  this  subject  was,  in  the  first  nistance, 
adopted  b}^  the  Parliament  of  the  United  Kingdom.  The  imperial 
statute  59  Geo.  III.,  cap.  88,  was  enacted  in  the  year  following  the 
convention,  in  order  to  give  that  convention  force  and  effect.  That 
statute  declared  that,  except  for  the  purposes  before  specified,  it 
should  '  not  be  lawful  for  any  person  or  persons,  not  being  a  natural- 
born  subject  of  His  Majesty,  in  any  foreign  ship,  vessel,  or  boat,  nor 
for  any  person  in  any  ship,  vessel,  or  boat,  other  than  such  as  shall  be 
navigated  according  to  the  laws  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  to  fish  for,  or  to  take,  dry,  or  cure  any  fish  of 
any  kind  whatever  within  three  marine  miles  of  any  coasts,  bays, 
creeks,  or  harbors  whatever,  in  any  i)art  of  His  Majesty's  dominions 
in  America,  not  included  within  the  limits  specified  and  described  in 
the  first  article  of  the  said  convention,  and  that  if  such  foreign  ship, 
Aessel,  or  boat,  or  any  person  or  persons  on  board  thereof  shall  be 
found  fishing,  or  to  have  been  fishing,  or  j^reparing  to  fish  within 
such  distance  of  such  coasts,  bays,  creeks,  or  harbors  within  such 
parts  of  His  Majesty's  dominions  in  America,  out  of  the  said  limits 
as  aforesaid,  all  such  ships,  vessels,  and  boats,  together  with  their 
cargoes,  and  all  guns,  ammunition,  tackel,  apparel,  furniture,  and 
>tores,  shall  be  forfeited,  and  shall  and  may  be  seized,  taken,  sued  for, 
})rosecuted,  recovered,  and  condemned  by  such  and  the  like  Avays, 
means,  and  methods,  and  in  the  same  courts  as  ships,  vessels,  or  boats 
may  be  forfeited,  seized,  prosecuted,  and  condemned  for  any  offense 
against  anv  laws  relating  to  the  revenue  of  customs,  or  the  laws  of 
trade  and  navigation,  under  any  act  or  acts  of  the  Parliament  of 
Great  Britain  or  the  United  Kingdom  of  Great  Britain  and  Ireland, 
provided  that  nothing  contained  in  this  act  shall  apply  or  be  con- 
strued to  apply  to  the  ships  or  subjects  of  any  prince,  j^ower,  or  state 
in  amity  with  His  Majesty  who  are  entitled  by  treaty  with  His  Majesty 
to  any  i)rivileges  of  taking,  drying,  or  curing  fish  on  the  coasts,  bays, 
creeks,  or  harbors  or  within  the  limits  in  this  act  described.  Provided 
always,  that  it  shall  and  may  be  lawful  for  any  fishermen  of  the  said 
United  States  to  enter  into  any  such  bays  or  harbors  of  His  Britannic 
Majesty's  dominions  in  America  as  are  last  mentioned,  for  the  pur])ose 
of  shelter  and  repairing  damages  therein,  of  purchasing  wood,  and  of 
obtaining  water,  and  for  no  other  ])urpose  whatever,  subject  never- 
theless to  such  restrictions  as  may  be  necessary  to  prevent  such 
fishermen  of  the  said  United  States  from  taking,  drying,  or  curing 


882  xNATioNAL  jurisdiction:   territorial,  limits.        [§167. 

jish  ill  the  said  bays  or  harbors,  or  in  any  other  manner  whatever, 
al)nsin<2:  the  said  privih^ges  l)y  the  said  treaty  and  this  act  reserved 
to  them,  and  as  shalh  for  that  ])nr|)ose.  be  imposed  by  any  order  or 
oi-ders  to  be  from  time  to  time  made  by  His  Majesty  in  council  under 
the  authority  of  tliis  act.  and  by  any  regulations  which  shall  l)e 
issued  l)v  the  governor  or  person  exercising  the  office  of  governor 
in  anv  such  parts  of  His  Majesty's  dominions  in  America,  under 
or  in  pursuance  of  any  such  order  in  council  as  aforesaid.  And 
that  if  any  person  or  persons  upon  requisition  made  by  the  gov- 
ernor of  Newfoundland,  or  the  person  exercising  the  office  of 
governoi".  or  by  any  governor  in  person  exercising  the  office  of  gov- 
( rnor  in  any  other  parts  of  His  Majesty's  dominions  in  America,  as 
(foresaid,  or  1)V  any  officer  or  officers  acting  under  such  governor  or 
pel-son  exercising  the  office  of  governoi-.  in  the  execution  of  any  orders 
')r  instructions  from  His  Majesty  in  council,  shall  refuse  to  depart 
from  such  bays  or  harbors,  or  if  any  person  or  persons  shall  refuse,  or 
neglect,  to  conform  to  any  regulations  or  directions  which  shall  be 
made  or  given  for  the  execution  of  any  of  the  purposes  of  this  act, 
every  such  person  so  refusing  or  otherwise  offending  against  this  act 
shall  forfeit  the  sum  of  two  hmidred  pounds,  to  be  recovered  in  the 
sui)eri()r  court  of  judicature  of  the  island  of  Newfoundland,  or  in  the 
superior  court  of  judicature  of  the  colony  or  settlement  Avithin  or  near 
to  which  such  offense  shall  be  committed,  or  by  bill,  plaint,  or  infor- 
mation in  any  of  His  ^Majesty's  courts  of  record  at  Westminster,  one 
moiety  of  such  penalty  to  belong  to  His  Majesty,  his  heirs,  and  suc- 
cessors, and  the  other  moiety  to  such  person  or  persons  as  shall  sue  or 
prosecute  for  the  same.' 

"'  The  acts  passed  by  the  provinces  uoav  forming  Canada,  and  also 
l)y  the  Parliament  of  Canada  (now  noted  in  the  margin)"  are  to  the 
same  effect,  and  may  bo  said  to  be  merely  declaratory  of  the  law  as 
established  by  the  imperial  statute. 

••  •").  The  authority  of  the  legislatures  of  the  provinces,  and,  after 
confederation,  the  authority  of  the  Parliament  of  Canada,  to.  make 
enactments  to  enforce  the  jM-ovisions  of  the  convention,  as  well  as  the 
authority  of  Canadian  (ifficers  to  enforce  those  acts,  rests  on  well- 
known  constitutional  principles. 

"  Those  legislatures  existed,  and  the  Parliament  of  Canada  now 
exists,  by  the  authority  of  the  Parliament  of  the  United  Kingdom  of 
(ireat  Britain  and  Ireland,  which  is  one  of  the  nations  referred  to 
l)y  Ml'.  Bayard  as  the  '  contracting  parties.'  The  colonial  statutes 
have  received  the  sanction  of  the  British  sovereign,  Avho,  and  not  the 

"Dominion  acts.  :51  Viet..  <ai).  G;  ."iS  Vict.,  cap.  16;  now  incorporated  in 
Kcvis«Ml  Statutes  of  laSC.  eap.  !K).  Nova  Scotia  acts.  Revised  Statntes,  M  series, 
'lip.  94,  20  Vict.  ns(Ui).  eap.  .35.  New  Rrunswieli  acts,  16  Vict.  (1853),  cap.  69. 
Prince  Edward  Island  acts,  G  Vict.  (1843),  cap.  14. 


§  167.]  THE    NORTHEASTERN    FISHERIES.  833 

nation,  is  actually  the  party  with  whom  the  United  States  made  the 
convention.  The  officers  who  are  engaged  in  enforcing  the  acts  of 
Canada  or  the  laAvs  of  the  Empire,  are  Her  Majesty's  officers,  whether 
their  authority  emanates  directly  from  the  Queen,  or  from  her  repre- 
sentative, the  governor-general.  The  jurisdiction  thus  exercised  can- 
not, therefore,  be  properly  described  in  the  language  used  by  Mr. 
Bayard  as  a  supposed  and  therefore  questionable  delegation  of  juris- 
diction by  the  Imperial  Government  of  (ireat  Britain.  Her  Majesty 
governs  in  Canada  as  well  as  in  (ireat  Britain;  the  officers  of  Canada 
are  her  officers;  the  statutes  of  Canada  are  her  statutes,  passed  on  the 
advice  of  her  Parliament  sitting  in  Canada. 

"  It  is,  therefore,  an  error  to  conceive  that  because  the  United  States 
find  Great  Britain  were,  in  the  first  instance,  the  contracting  parties 
to  the  treaty  of  1818,  no  question  arising  under  that  treaty  can  be 
'  responsibly  dealt  with,'  either  by  the  Parliament  or  by  the  author- 
ities of  the  Dominion. 

"  The  raising  of  this  objection  now  is  the  more  remarkable,  as  the 
(xovernment  of  the  United  States  has  long  been  aware  of  the  neces- 
sity of  reference  to  the  colonial  legislatures  in  matters  affecting  their 
interests. 

"  The  treaties  of  1854  and  1871  exi^ressly  provide  that,  so  far  as 
they  concerned  the  fisheries  or  trade  relations  with  the  provinces, 
Ihey  should  be  subject  to  ratification  by  their  several  legislatures; 
and  seizures  of  American  vessels  and  goods,  followed  by  condemna- 
tion for  breach  of  the  provincial  customs  laws,  have  been  made  for 
forty  years  Avithout  protest  or  objection  on  the  part  of  the  United 
States  Government. 

"  The  undersigned,  with  regard  to  this  contention  of  Mr,  Bayard, 
has  further  to  observe  that  in  the  proceedings  which  have  recently 
been  taken  for  the  protection  of  the  fisheries,  no  attempt  has  been 
made  to  put  any  special  or  novel  interpretation  on  the  convention  of 
1818.  The  seizures  of  the  fishing  vessels  have  been  made  in  order  to 
enforce  the  explicit  provisions  of  that  treaty,  the  clear  and  long  es- 
tablished provisions  of  the  imperial  statute  and  of  the  statutes  of 
Canada  expressed  in  almost  the  same  language. 

"  The  proceedings  which  have  been  taken  to  carry  out  the  law  of 
the  Empire  in  the  present  case  are  the  same  as  those  which  have  been 
taken  from  time  to  time  during  the  period  in  which  the  convention 
has  been  in  force,  and  the  seizures  of  vessels  have  been  made  under 
process  of  the  imperial  court  of  vice-admiralty  established  in  the 
provinces  of  Canada. 

"  Mr,  Bayard  further  observes  that  since  the  treaty  of  1818,  '  a 
series  of  laws  and  regulations  affecting  the  trade  between  the  North 

H.  Doc.  551 53 


834  NATIONAL  jurisdiction:  territorial  limits.        [§167. 

American  provinces  and  the  United  States  have  been  respectively 
adopted  1)V  the  two  conntries,  and  have  led  to  amicable  and  mutually 
beneficial  rehitions  between  their  respective  inhabitants,'  and  that 
'  the  independent  and  yet  concurrent  action  of  the  two  Governments 
has  effected  a  ^rradual  extension  from  time  to  time  of  the  provisions 
of  artick"  1  of  the  convention  of  .'^e  Hd  of  July.  1815,  providing  for 
recij^rocal  liberty  of  commerce  between  the  United  States  and  the 
territories  of  (xreat  Britain  in  Europe,  so  as  gradually  to  include  the 
colonial  possessions  of  (irreat  Britain  in  North  America  and  the  West 
Indies  within  the  limits  of  that  treaty.' 

•'  The  undersigned  has  not  been  able  to  discover,  in  the  instances 
given  by  Mr.  Bayard,  any  evidence  that  the  hiAvs  and  regulations 
affecting  the  trade  between  the  British  North  American  Provinces 
and  the  United  States,  or  that  '  the  independent  and  yet  concurrent 
action  of  the  two  (lovernments  *  have  either  extended  or  restricted 
the  terms  of  the  convention  of  1818,  or  affected  in  any  way  the  right 
to  enforce  its  provisions  according  to  the  plain  meaning  of  the  articles 
of  the  treaty;  on  the  contrary,  a  reference  to  the  eighteenth  article 
of  the  Washington  treaty  will  show  that  the  contracting  parties  made 
the  convention  the  basis  of  the  further  privileges  granted  by  the 
treaty,  and  it  does  not  allege  that  its  provisions  are  in  any  way  ex- 
tended or  affected  by  subsequent  legislation  or  acts  of  administration. 

"  Mr.  Bayard  has  referred  to  the  proclamation  of  President  Jack- 
son in  18-30.  creating  '  reciprocal  commercial  intercourse  on  terms  of 
perfect  equality  of  flag  *  between  the  United  States  and  the  British 
American  dependencies,  and  has  suggested  that  these  '  commercial 
privileges  have  since  received  a  large  extension,  and  that  in  some 
cases  ■*  favors "  have  been  granted  by  the  United  States  without 
equivalent  "  concession."  such  as  the  exemption  granted  by  the  ship- 
ping act  of  the  20th  June.  1884.  amounting  to  one-half  of  the  regular 
tonnage  dues  on  all  vessels  from  British  North  America  and  West 
Indies  entering  ports  of  the  Ignited  States." 

"  He  has  also  mentioned  under  this  head  '  the  arrangement  for  the 
transit  of  goods,  and  the  remission  by  proclamation  as  to  certain 
British  ports  and  places  of  the  remainder  of  the  tonnage  tax  on  evi- 
dence of  eqiuil  treatment  Ix'ing  shown  "  to  United  States  vessels. 

"The  proclamaticm  of  President  Jackson  in  1830  had  no  relation 
to  the  subject  of  the  fisheries,  and  merely  had  the  effect  of  opening 
United  States  ports  to  British  vessels  on  terms  similar  to  those  which 
had  already  been  granted  in  British  ports  to  vessels  of  the  United 
States.  The  object  of  these  "  laws  and  regulations  '  mentioned  by 
Mr.  Bayard  was  purely  of  a  commercial  character,  while  the  sole 
puipose  of  the  convention  of  1818  was  to  establish  and  define  the 
rights  of  the  citizens  of  the  two  countries  in  relation  to  the  fisheries 
on  the  British  North  American  coast. 


§  167.]  THE    NORTHEASTERN    FISHERIES.  835 

"  Bearing  this  distinction  in  mind,  however,  it  may  be  conceded 
that  substantial  assistance  has  been  given  to  the  development  of 
commercial  intercourse  between  the  two  countries. 

•'  But  legislation  in  that  direction  has  not  been  confined  to  the  Gov- 
ernment of  the  United  States,  as  indeed  Mr.  Bayard  has  admitted  in 
referring  to  the  case  of  the  imperial  shipping  and  navigation  act  of 
1849. 

''  P"or  upwards  of  forty  years,  as  has  already  been  stated,  Canada 
has  continued  to  evince  her  desire  for  a  free  exchange  of  the  chief 
products  of  the  two  countries.  She  has  repeatedly  urged  the  desira- 
bility of  the  fuller  reciprocity  of  trade  which  was  established  during 
the  period  in  which  the  treaty  of  1854  was  in  force. 

"  The  laws  of  Canada  with  regard  to  the  registry  of  vessels,  ton- 
nage dues,  and  shipping  generally,  are  more  liberal  than  those  of 
(he  United  States.  The  ports  of  Canada  in  inland  waters  are  free 
to  vessels  of  the  United  States,  which  are  admitted  to  the  use  of  her 
canals  on  equal  terms  with  Canadian  vessels. 

"'  Canada  allows  free  registry  to  ships  built  in  the  United  States 
and  purchased  by  British  citizens,  charges  no  tonnage  or  light  dues 
on  United  States  shipping,  and  extends  a  standing  invitation  for 
a  large  measure  of  reciprocity  in  trade  by  her  tariff  legislation. 

"  Whatever  relevancy,  therefore,  the  argument  may  have  to  the 
subject  under  consideration,  the  undersigned  submits  that  the  conces- 
sions which  Mr.  Bayard  refers  to  as  '  favors  '  granted  by  the  United 
States  can  hardly  be  said  not  to  have  been  met  by  equivalent  con- 
cessions on  the  part  of  the  Dominion,  and  inasmuch  as  the  disposi- 
tion of  Canada  continues  to  be  the  same,  as  Avas  evinced  in  the 
friendly  legislation  just  referred  to,  it  would  seem  that  Mr.  Bayard's 
charges  of  showing  '  hostility  to  commerce  under  the  guise  of  protec- 
tion to  onshore  fisheries,'  or  of  interrupting  ordinary  commercial 
intercourse  by  harsh  measures  and  unfriendly  administration,  is 
hardly  justified. 

"•  The  questions  which  were  in  controversy  between  Great  Britain 
and  the  United  States  prior  to  1818  related  iiot  to  shipping  and  com- 
merce, l)ut  to  the  claims  of  United  States  fishermen  to  fish  in  waters 
adjacent  to  the  British  North  American  provinces. 

"  Those  questions  were  definitely  settled  by  the  convention  of  that 
year,  and  although  the  terms  of  that  convention  have  since  been  twice 
suspended,  first  by  the  treaty  of  1854,  and  subsequently  by  that  of 
1871,  after  the  lapse  of  each  of  these  two  treaties  the  provisions  made 
in  1818  came  again  into  o]:)eration,  and  were  carried  out  by  the  Impe- 
rial and  colonial  authorities  without  the  slightest  doubt  being  raised 
as  to  their  being  in  full  force  and  vigor. 

"  Mr.  Bayard's  contention  that  the  effect  of  the  legislation  which 
has  taken  place  under  the  convention  of  1818,  and  of  executive  action 


836  NATIOX.^L.   JURISDICTION  :    TERRITORIAL   LIMITS.  [§  167. 

thereuiulor.  would  l>e  *  to  expand  the  restrictions  and  renunciations 
of  that  treaty  which  rehited  solely  to  the  inshore  fishing  within  the 
three-mile  limit,  so  as  to  alTect  the  deep-sea  fisheries,'  and  'to  dimin- 
ish and  i^ractically  destroy  the  jirivileges  expressly  secured  to  Amer- 
ican fishing  vessels  to  visit  these  inshore  waters  for  the  objects  of 
shelter  and  repair  of  damages,  and  purchasing  wood  and  obtaining 
water."  appears  to  the  undersigned  to  be  unfounded.  The  legislation 
referred  to  in  no  way  affects  those  privileges,  nor  has  the  Government 
of  Canada  taken  any  action  towards  their  restriction.  In  the  cases 
of  the  recent  stMzures.  which  are  the  immediate  subject  of  Mr.  Bay- 
ard's letter,  the  vessels  seized  had  not  resorted  to  Canadian  waters 
for  any  one  of  the  purposes  specified  in  the  convention  of  1818  as 
lawful.  They  were  United  States  fishing  vessels,  and.  against  the 
plain  terms  of  the  convention,  had  entered  Canadian  harbors.  In 
doing  so  the  Da  rid  ./.  Adams  was  not  even  possessed  of  a  permit  '  to 
touch  and  trade."  even  if  such  a  document  could  be  supposed  to  divest 
her  of  the  character  of  a  fishing  vessel. 

'•  The  undersigned  is  of  opinion  that  while,  for  the  reasons  which 
he  has  advanced,  there  is  no  evidence  to  show  that  the  (rovernment 
of  Canada  has  sought  to  expand  the  scope  of  the  convention  of  1818 
or  to  increase  the  extent  of  its  restrictions,  it  would  not  be  difficult  to 
l)rove  that  the  construction  which  the  United  States  seeks  to  place 
on  that  convention  would  have  the  effect  of  extending  very  largely 
the  privileges  which  their  citizens  enjoy  under  its  terms.  The  con- 
tention that  the  changes  which  may  from  time  to  time  occur  in  the 
habits  of  the  fish  taken  off  our  coasts,  or  in  the  methods  of  taking 
them,  should  Ix'  regarded  as  justifying  a  periodical  revision  of  the 
terms  of  the  treaty,  or  a  new  interpretation  of  its  provisions,  cannot 
Ix?  acceded  to.  Such  changes  may  from  time  to  time  render  the  con- 
ditions of  the  contract  inconvenient  to  one  party  or  the  other,  but 
the  validity  of  the  agreement  can  hardly  be  said  to  depend  on  the 
convenience  or  inconvenience  which  it  imposes  from  time  to  time  on 
one  or  otlier  of  the  contracting  parties.  When  the  operation  of 
its  •i)r«>vi>ions  can  1m^  shown  to  have  become  manifestly  inequitable, 
tiie  utmo>t  that  good  will  and  fair  dealing  can  suggest  is  that  the 
t('rm>  should  be  reconsidered  and  a  new  arrangement  entered  into: 
l)ut  this  the  (iovernment  of  the  United  States  does  not  appear  to 
have  considered  desiral)le. 

•'  It  is  not.  however,  the  case  that  the  convention  of  1818  affected 
(inly  tlie  inshore  fisheries  of  the  British  ]:)rovinces;  it  was  framed 
with  the  object  of  affording  a  complete  and  exclusive  definition  of 
the  riglits  and  liberties  which  the  fishermen  of  the  United  States  Avere 
tlit'iKcforward  to  enjoy  in  following  their  vocation,  so  far  as  those 
riglits  could  l)e  affected  by  facilities  for  access  to  the  shores  or  waters 
of  the  British  provinces,  or  for  intercourse  with  their  people.     It  is 


§  167.]  THE    NORTHEASTERN    FISHERIES.  837 

therefore  no  undue  expansion  of  the  scope  of  that  convention  to  inter- 
pret strictly  those  of  its  provisions  by  which  such  access  is  denied, 
except  to  vessels  requiring  it  for  the  purposes  specifically  described. 

"  Such  an  undue  expansion  would,  upon  the  other  hand,  certainly 
take  place  if.  under  cover  of  its  provisions,  or  of  any  agreements  rela- 
ting to  general  commercial  intercourse  which  may  have  since  been 
made,  permission  Avere  accorded  to  ITnited  States  fishermen  to  resort 
habitually  to  the  harbors  of  the  Dominion,  not  for  the  sake  of  seeking 
safety  for  their  vessels  or  of  avoiding  risk  to  human  life,  but  in  order 
to  use  those  harbors  as  a  general  base  of  oi)erations  from  which  to 
prosecute  and  organize  with  greater  advantage  to  themselves  the 
industry  in  which  they  are  engaged. 

"  It  was  in  order  to  guard  against  such  an  abuse  of  the  provisions 
of  the  treaty  that  amongst  them  was  included  the  stipulation  that 
not  only  should  the  inshore  fisheries  be  reserved  to  British  fishermen, 
but  that  the  United  States  should  renounce  the  right  of  their  fisher- 
men to  enter  the  bays  or  harbors  excepting  for' the  four  specified 
purposes,  which  do  not  include  the  purchase  of  bait  or  other  appli- 
ances, whether  intended  for  the  deep-sea  fisheries  or  not. 

"  The  undersigned,  therefore,  cannot  concur  in  Mr.  Bayard's  con- 
tention that  '  to  prevent  the  purchase  of  bait,  or  any  other  supjDly 
needed  for  deep-sea  fishing,  Avould  be  to  expand  the  convention  to 
objects  wholly  beyond  the  purview-,  scope,  and  intent  of  the  treaty, 
and  to  give  to  it  an  effect  never  contemplated.' 

''  Mr.  Bayard  suggests  that  the  possession  by  a  fishing  vessel  of  a 
permit  to  '  touch  and  trade '  should  give  her  a  right  to  enter  Cana- 
dian ports  for  other  than  the  purposes  named  in  the  treaty,  or,  in 
other  words,  should  give  her  perfect  imnninity  from  its  provisions. 
This  would  amount  to  a  practical  repeal  of  the  treaty,  because  it 
would  enable  a  United  States  collector  of  customs,  by  issuing  a 
license,  originally  only  intended  for  purposes  of  domestic  customs 
regulation,  to  give  exemption  from  the  treaty  to  every  United  States 
fishing  vessel.  The  observation  that  similar  vessels  under  the  Brit- 
ish flag  have  the  right  to  enter  the  ports  of  the  United  States  for  the 
purchase  of  supplies  loses  its  force  when  it  is  remembered  that  the 
convention  of  1818  contained  no  restriction  on  British  A'essels,  and  no 
renunciation  of  any  privileges  in  regard  to  them. 

••  Mr.  Bayard  states  that  in  the  proceedings  prior  to  the  treaty  of 
1818  the  British  commissioners  ])roposed  that  Ignited  States  fishing 
vessels  should  be  excluded  '  from  carrying  also  merchandise,'  but  that 
this  proposition  '  being  resisted  by  the  American  negotiators,  Avas 
abandoned,'  and  goes  on  to  say,  '  this  fact  would  seem  clearly  to  indi- 
cate that  the  business  of  fishing  did  not  then,  and  does  not  now,  dis- 
qualify vessels  from  also  trading  in  the  regular  ports  of  entry.'  A 
reference  to  the  proceedings  alluded  to  will  show  that  the  proposition 


838  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  167. 

mentioned  related  only  to  United  States  vessels  visiting  those  por- 
tions of  the  coast  of  Labrador  and  Newfoundland  on  which  the 
I"'^nited  States  fishermen  had  been  granted  the  right  to  fish,  and  to 
land  for  drying  and  curing  fish,  and  the  rejection  of  the  proposal 
can.  at  the  utmost,  be  supposed  only  to  indicate  that  the  liberty  to 
carry  merchandise  might  exist  without  objection  in  relation  to  those 
coasts,  and  is  no  ground  for  supposing  that  the  right  extends  to  the 
regular  ports  of  entry,  against  the  express  words  of  the  treaty. 

••  The  proposition  of  the  British  negotiators  was  to  append  to  Arti- 
cle I  the  following  Avords :  "  It  is,  therefore,  well  understood  that  the 
liberty  of  taking,  drying,  and  curing  fish,  granted  in  the  preceding 
part  of  this  article,  shall  not  be  construed  to  extend  to  any  privilege 
of  carrying  on  trade  with  any  of  His  Britannic  Majesty's  subjects 
residing  within  the  limits  hereinbefore  assigned  for  the  use  of  the 
fishermen  of  the  United  States." 

■'  It  was  also  proposed  to  limit  them  to  having  on  board  such  goods 
as  might  '  be  necessary  for  the  prosecution  of  the  fishery  or  the  sup- 
port of  the  fishermen  Avhile  engaged  therein,  or  in  the  prosecution  of 
their  voyages  to  and  from  the  fishing  grounds.' 

'•  To  this  the  American  negotiators  objected,  on  the  ground  that  the 
search  for  contraband  goods,  and  the  liability  to  seizure  for  having 
them  in  possession,  would  expose  the  fishermen  to  endless  vexation, 
and.  in  consequence,  the  proposal  Avas  abandoned.  It  is  apparent, 
therefore,  that  this  proviso  in  no  way  referred  to  the  bays  or  harbors 
outside  of  the  limits  assigned  to  the  American  fishermen,  from  which 
bays  and  harbors  it  was  agreed,  both  before  and  after  this  proposi- 
tion was  discussed,  that  United  States  fishing  vessels  were  to  be  ex- 
cluded for  all  purposes  other  than  for  shelter  and  repairs,  and  pur- 
chasing wood  and  obtaining  water. 

••  If.  however,  weight  is  to  be  given  to  Mr.  Bayard's  argument  that 
the  rejection  of  a  proj)ositi()n  advanced  by  either  side  during  the 
course  of  the  negotiations  should  be  held  to  necessitate  an  interpreta- 
tion adverse  to  the  tenor  of  such  i)r()i)osition,  that  argument  may  cer- 
tainly l)e  used  to  pi-ove  that  American  fishing  vessels  were  not  in- 
tended to  have  the  right  to  enter  Canadian  waters  for  bait  to  be  used 
even  in  the  prosecution  of  the  dee])-sea  fisheries.  The  United  States 
negotiators  in  181S  made  the  proposition  that  the  words  'and  bait' 
be  added  to  the  enumeration  of  the  objects  for  which  these  fishermen 
might  be  allowed  to  enter,  and  the  pi-oviso  as  first  submitted  had  read 
'  ])rovided.  however,  that  American  fishermen  shall  be  permitted  to 
enter  such  bays  and  harbors  for  the  purpose  only  of  obtaining  shelter, 
wo()<l.  water,  and  l)ait.'  The  addition  of  the  two  last  words  was,  how- 
ever, resisted  V)v  the  British  ])lenij)otentiaries,  and  their  omission 
ac(|uiesced  in  by  their  American  colleagues.  It  is.  moreover,  to  be 
observed  that  this  i)roposition  could  only  have  had  reference  to  the 


§  167.]  THE    NOETHEASTERlSr    FISHERIES.  839 

deep-sea  fishing,  because  the  inshore  fisheries  had  ah-eady  been  spe- 
cifically renounced  by  the  representatives  of  the  United  vStates. 

"  In  addition  to  this  evidence,  it  must  be  remembered  that  the 
United  States  Government  admitted,  in  the  case  submitted  by  them 
before  the  Halifax  connnission  in  1877.  that  neither  the  convention  of 
1818  nor  the  treaty  of  Washington  conferred  any  right  or  privilege 
of  trading  on  American  fishermen.  The  British  case  claimed  compen- 
sation for  the  privilege  which  had  been  given  since  the  ratification  of 
the  latter  treaty  to  United  States  fishing  vessels  '  to  transfer  cargoes, 
to  outfit  vessels,  buy  supplies,  obtain  ice.  engage  sailors,  procure  bait, 
and  traffic  generally  in  British  ports  and  harbors.* 

"  This  claim  ^vas,  however,  successfully  resisted,  and  in  the  United 
States  case  it  is  maintained  "  that  the  various  incidental  and  reciprocal 
advantages  of  the  treaty,  such  as  the  privileges  of  traffic,  purchasing 
bait  and  other  supplies,  are  not  the  subject  of  comj^ensation,  because 
the  treaty  of  Washington  confers  no  such  rights  on  the  inhabitants 
of  the  United  States,  who  now  enjoy  them  merely  by  sufferance,  and 
who  can  at  any  time  be  deprived  of  them  by  the  enforcement  of  exist- 
ing laws  or  the  reenactment  of  former  oppressive  statutes.  Moreover, 
the  treaty  does  not  provide  for  any  possible  compensation  for  such 
privileges.' 

'"  Now,  the  existing  laAvs  referred  to  in  this  extract  are  the  various 
statutes  passed  by  the  imperial  and  colonial  legislatures  to  give  effect 
to  the  treaty  of  1818,  which,  it  is  admitted  in  the  said  case,  could  at 
any  time  have  been  enforced  (even  during  the  existence  of  the  Wash- 
ington treaty),  if  the  Canadian  authorities  had  chosen  to  do  so. 

'•  Mr.  Bayard  on  more  than  one  occasion  intimates  that  the  interpre- 
tation of  the  treaty  and  its  enforcement  are  dictated  by  local  and  hos- 
tile feelings,  and  that  the  main  question  is  being  '  obscured  by  par- 
tisan advocacy  and  distorted  In'  the  heat  of  local  interests,'  and,  in 
conclusion,  expresses  a  ho[)e  that  '  ordinary  commercial  intercourse 
shall  not  be  interrupted  by  harsh  measures  and  unfriendly  adminis- 
trations.* 

••  The  undersigned  desires  emphatically  to  state  that  it  is  not  the 
wish  of  the  GoA'ernment  or  the  people  of  Canada  to  interrupt  for  a 
moment  the  most  friendly  and  free  connnereial  intercourse  with  the 
neighboring  Republic. 

"  The  mercantile  vessels  and  the  commerce  of  the  United  States 
have  at  present  exactly  the  same  freedom  that  they  have  for  years 
passed  enjoyed  in  Canada,  and  the  disposition  of  the  Canadian  Gov- 
ernment is  to  extend  reciprocal  trade  with  the  United  States  beyond 
its  present  linuts,  nor  can  it  be  admitted  that  the  charge  of  local  preju- 
dice or  hostile  feeling  is  justified  by  the  calm  enforcement,  through 
the  legal  tribunals  of  the  country,  of  the  plain  terms  of  a  treaty  be- 
tween Great  Britain  and  the  United  States,  and  of  the  statutes  which 


840  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  167. 

have  been  iu  operation  for  nearly  seventy  years,  excepting  in  in- 
tervals (luring  Avhic'h  (until  put  an  end  to  by  the  United  States  Gov- 
ernment) special  and  more  liberal  provisions  existed  in  relation  to  the 
commerce  and  fisheries  of  the  two  countries. 

*•  The  undersigned  has  further  to  call  attention  to  the  letter  of  Mr. 
Bayard  of  the  20th  May.  relating  also  to  the  seizure  of  the  Daind  J. 
Adams  in  the  port  of  Digby,  Nova  Scotia. 

"■  That  vessel  was  seized,  as  has  been  explained  on  a  previous  occa- 
sion, by  the  connnander  of  the  Canadian  steamer  La/hS'dowtie,  under 
the  following  circumstances: 

'•  She  was  a  United  States  fishing  vessel,  and  entered  the  harbor  of 
Digby  for  iMirjioses  other  than  those  for  which  entry  is  permitted  by 
the  treaty  and  by  the  imperial  and  Canadian  statutes. 

"As  soon  as  practical)le,  legal  process  was  obtained  from  the  vice- 
admiralty  court  at  Halifax,  and  the  vessel  was  delivered  to  the  officer 
of  that  court.  The  paper  referred  to  in  Mr,  Bayard's  letter  as  having 
been  nailed  to  her  mast  was  doubtless  a  copy  of  the  warrant  which 
connnanded  the  marshal  or  his  deputy  to  make  the  arrest. 

"  The  undersigned  is  informed  that  there  was  no  intention  what- 
ever of  so  adjusting  the  paper  that  its  contents  could  not  be  read,  but 
it  is  doubtless  correct  that  the  oflicer  of  the  court  in  charge  declined  to 
allow  the  document  to  be  removed.  Both  the  United  States  consul- 
general  and  the  caj^tain  of  the  Dor'id  J.  Addins  w^ere  made  acquainted 
with  the  reasons  for  the  seizure,  and  the  only  ground  for  the  statement 
that  a  respectful  applicaticm  to  ascertain  the  nature  of  the  complaint 
was  fruitless,  was  that  the  commander  of  the  L((nsd<)wne^  after  the 
nature  of  the  complaint  had  been  stated  to  those  concerned  and  was 
published,  and  had  become  notorious  to  the  people  of  both  countries, 
declined  to  give  the  United  States  consul-general  a  sjiecific  and  pre- 
cise statement  of  the  charges  upon  Avhich  the  vessel  would  be  pro- 
ceeded against,  but  referred  him  to  his  su])erior. 

"  Such  conduct  on  the  part  of  the  officer  of  the  Lansdoicne  can 
hardly  be  said  to  have  been  extraordinary  under  the  present  circum- 
stances. 

*•  The  legal  proceedings  had  at  that  time  been  commenced  in  the 
court  of  vice-admiralty  at  Halifax,  where  the  United  States  consul- 
general  resides,  and  the  officer  at  Digby  could  not  haA^e  stated  with 
precision,  as  he  was  called  upon  to  do,  the  grounds  on  which  the 
intervention  of  the  court  had  been  claimed  in  the  ])roceedings  therein. 

"■  'I'here  was  not.  in  this  instance,  the  slightest  difficulty  in  the 
I'nited  States  consul-general  and  those  interested  in  the  vessel  obtain- 
ing the  fullest  information,  and  no  information  which  could  have 
been  given  by  those  to  whom  they  applied  was  withheld. 

""Apart  from  the  general  knowledge  of  the  offenses  which  it  was 
claimed  the  master  had  connnitted.  and  which  was  furnished  at  the 


§  167.]  THE    NORTHEASTERN    FISHERIES.  841 

lime  of  the  seizure,  the  most  technical  and  precise  details  were  readily 
obtainable  at  the  registry  of  the  court,  and  from  the  solicitors  of  the 
Crown,  and  would  have  been  furnished  immediately  on  application 
lo  the  authority  to  whom  the  commander  of  the  Lansdoicne  requested 
the  United  States  consul-general  to  appl}^  No  such  information 
could  have  been  obtained  from  the  paper  attaclied  to  the  vessel's  mast. 

"  Instructions  have,  however,  l)een  given  to  the  commander  of  the 
Lansdoicne  and  other  officers  of  the  marine  police,  that,  in  the  event 
of  any  further  seizure,  a  statement  in  writing  shall  be  given  to  the 
master  of  the  seized  vessel  of  the  offenses  for  which  the  vessel  may  be 
detained,  and  that  a  cojiv  thereof  shall  be  sent  to  the  United  States 
consul-general  at  Halifax,  and  to  the  nearest  United  States  consular 
agent,  and  there  can  be  no  objection  to  the  solicitor  for  the  Crown 
being  instructed  likewise  to  furnish  the  consul-general  with  a  copy 
of  the  legal  process  in  each  case,  if  it  can  be  supposed  that  any  fuller 
information  will  thereby  be  given. 

"  Mr.  Bayard  is  correct  in  his  statement  of  the  reasons  for  which 
the  Da  rid  J.  Adams  Avas  seized,  and  is  now  held.  It  is  claimed  that 
the  vessel  violated  the  treaty  of  1818,  and  consequently^  the  statutes 
which  exist  for  the  enforcement  of  the  treaty,  and  it  is  also  claimed 
that  she  violated  the  customs  laws  of  Canada  of  1883. 

''  The  undersigned  reconunends  that  copies  of  those  statutes  be  fur- 
nished for  the  information  of  Mr.  Bayard. 

"  Mr.  Bayard  has,  in  the  same  dispatch,  recalled  the  attention  of 
Her  Majesty's  minister  to  the  correspondence  and  action  which  took 
place  in  the  year  1870,  when  the  fishery  question  was  under  consider- 
ation, and  especially  to  the  instructions  from  the  lords  of  the  admir- 
alty to  Vice-Admiral  AVellesIev,  in  which  that  officer  was  directed  to 
observe  great  caution  in  the  arrest  of  American  fishermen,  and  to 
confine  his  action  to  one  class  of  offenses  against  the  treaty.  Mr. 
Ba^^ard,  however,  appears  to  have  attached  unwarranted  importance 
to  the  corres})ondence  and  instructions  of  1870,  when  he  refers  to 
them  as  implying  '  an  understanding  between  the  two  Governments,' 
an  understanding,  which  should,  in  his  opinion,  at  other  times,  and 
under  other  circumstances,  govern  the  conduct  of  the  authorities, 
whether  imperial  or  colonial,  to  whom  under  the  laws  of  the  Empire 
is  committed  the  duty  of  enforcing  the  treaty  in  question. 

"  "\Mien,  therefore,  Mr.  Bayard  points  out  the  '  absolute  and  instant 
necessity  that  now  exists  for  a  restriction  of  the  seizure  of  American 
vessels  charged  with  violations  of  the  treaty  of  1818  '  to  the  condi- 
tions specified  under  those  instructions,  it  is  necessary  to  recall  the 
fact  that  in  the  year  1870  the  principal  cause  of  complaint  on  the 
part  of  Canadian  fishermen  was  that  the  American  vessels  were  tres- 
passing on  the  inshore  fishing  grounds  and  interfering  with  the  catch 


842  XATIOXAL   JURISDICTION  :    TERRITORIAL   LIMITS.  [§  167. 

of  mackerel  in  Canadian  waters,  the  purchase  of  bait  being  then  a 
matter  of  secondary  importance. 

'•  It  is  probable,  too,  that  the  action  of  the  imperial  Government 
was  influenced  very  largely  by  the  prospect  which  then  existed  of  an 
arranfrement  such  as  was  accomplished  in  the  following  year  by  the 
treaty  of  Washington,  and  that  it  may  be  inferred,  in  view  of  this 
disposition  made  apparent  on  both  sides  to  arrive  at  such  an  under- 
standing, that  the  imperial  authorities,  without  any  surrender  of 
imperial  or  colonial  rights,  and  without  acquiescing  in  any  limited 
construction  of  the  treaty,  instructed  the  vice-admiral  to  confine  his 
seizures  to  the  more  open  and  injurious  class  of  offenses  which  were 
especially  likely  to  be  brought  within  the  cognizance  of  the  naval 
officers  of  the  imperial  service. 

'•  The  Canadian  Government,  as  has  been  already  stated,  for  six 
months  left  its  fishing  grounds  open  to  American  fishermen,  without 
any  corresponding  advantage  in  return,  in  order  to  prevent  loss  to 
those  fishermen,  and  to  afford  time  for  the  action  of  Congress,  on  the 
President's  recommendation  that  a  joint  commission  should  be  ap- 
pointed to  consider  the  whole  question  relating  to  the  fisheries. 

"  That  recommendation  has  been  rejected  by  Congress.  Canadian 
fish  is  by  prohibitory  duties  excluded  from  the  United  States  market. 
The  American  fishermen  clamor  against  the  removal  of  those  duties, 
and.  in  order  to  maintain  a  monopoly  of  the  trade,  continue  against 
all  law  to  force  themselves  into  our  waters  and  harbors,  and  make  our 
shores  their  base  for  supplies,  especially  for  bait,  which  is  necessary 
to  the  successful  prosecution  of  their  business. 

"  They  hope  by  this  course  to  supply  the  demand  for  their  home 
market,  and  thus  to  make  Canada  indirectly  the  means  of  injuring 
her  own  trade. 

''  It  is  surely,  therefore,  not  unreasonable  that  Canada  should  insist 
on  the  rights  secured  to  her  by  treaty.  She  is  simply  acting  on  the 
defensive,  and  no  trouble  can  arise  between  the  two  countries  if 
American  fishermen  will  only  recognize  the  provisions  of  the  conven- 
tion of  INIS  as  obligatory  upon  them,  and  until  a  new  arrangement  i-^ 
made,  abstain  both  from  fishing  in  her  waters  and  from  visiting  her 
bays  and  harbors  for  any  purpose  save  those  specified  in  the  treaty. 

"  In  conclusion,  the  undersigned  would  express  the  hope  that  tho 
discussion  which  has  arisen  on  this  question  may  lead  to  renewed 
negotiations  between  Great  Britain  and  the  Imited  States,  and  may 
have  the  result  of  establishing  extended  trade  relations  between  the 
Republic  and  Canada,  and  of  removing  all  sources  of  irritation 
between  the  two  countries.'' 

RoiMn-t  of  Mr.  Foster.  Canadian  minister  of  marine  and  fisheries,  June  14, 
l.SSC).  enclosed  witli  instructions  of  Ix)rd  Rosebery  to  Sir  L.  West, 
Rrit.  niiu.  at  Wasiiinirton.  of  .Tuly  2?,.  IRSO.  and  connnunicated  to  the 
Department  of  State.  Aug.  li.  188U.  Ror.  Rel.  1886,  395. 


§  167.]  THE    NOETHEASTERN    FISHERIES.  843 

"  With  reference  to  a  dispatch  from  the  British  minister  at  Washington, 
to  his  excellency  the  governor-general,  dated  the  21st  May  last,  and 
inclosing  a  leter  from  Mr.  Secretary  Bayard,  regarding  the  refusal  of 
the  collector  of  customs  at  Digby,  Nova  Scotia,  to  allow  the  United 
States  schooner  Jennie  and  Julia  the  right  of  exercising  commercial 
privileges  at  the  said  port,  the  undersigned  has  the  honor  to  make  the 
following  observations : 

"  It  ai)pears  the  Jennie  and  Julia  is  a  vessel  of  about  14  tons  register,  that 
she  was  to  all  intents  and  purposes  a  fishing  vessel,  and,  at  the  time 
of  her  entry  into  the  port  of  Digby,  had  fishing  gear  and  apparatus 
on  board,  and  that  the  collector  fuly  satisfied  himself  of  these  facts. 
According  to  the  master's  declaration,  she  was  there  to  purchase 
fresh  herring  only,  and  wished  to  get  them  direct  from  the  weir 
fishermen.  The  collector  acted  upon  his  conviction  that  she  was  a 
fishing  vessel,  and,  as  such,  debarred  by  the  treaty  of  1818  from 
entering  Canadian  ports  for  the  purposes  of  trade.  He,  therefore,  in 
the  exercise  of  his  plain  duty,  warned  her  off. 

'*  The  treaty  of  1818  is  explicit  in  its  tei-ms,  and  by  it  United  States  fishing 
vessels  are  allowed  to  enter  Canadian  ports  for  shelter,  repairs,  wood, 
and  water,  and  '  for  no  other  purpose  whatever.' 

"  The  undersigned  is  of  the  opinion  that  it  cannot  be  successfully  con- 
tended that  a  bona  fide  fishing  vessel  can,  by  simply  declaring  her 
intention  of  purchasing  fresh  fish  for  other  than  baiting  pui'poses, 
evade  the  provisions  of  the  treaty  of  1818  and  obtain  privileges  not 
contemplated  thereby.  If  that  were  admitted,  the  provision  of  the 
treaty  which  excludes  United  States  fishing  vessels  for  all  purposes 
but  the  four  above-mentioned,  would  be  rendered  null  and  void,  and 
the  whole  United  States  fishing  fleet  be  at  once  lifted  out  of  the 
category  of  fishing  vessels,  and  allowed  the  free  use  of  Canadian  ports 
for  baiting,  obtaining  supplies,  and  trans-sliipping  cargoes. 

"  It  appears  to  the  undersigned  that  the  question  as  to  whether  a  vessel 
is  a  fishing  vessel  or  a  legitimate  trader  or  merchant  vessel,  is  one  of 
fact  and  to  be  decided  l)y  the  character  of  the  vessel  and  the  nature  of 
her  outfit,  and  that  the  class  to  which  she  belongs  is  not  to  be  deter- 
mined l)y  the  sinii)le  declaration  of  her  master  that  he  is  not  at  any 
given  time  acting  in  the  character  of  a  fisherman. 

"At  the  same  time  the  undersignwl  begs  again  to  observe  tliat  Canada  has 
no  desire  to  interrupt  the  long-establishetl  and  legitimate  commercial 
intercourse  with  the  United  States,  but  rather  to  encourage  and  main- 
tain it.  and  that  Canadian  ports  are  at  jiresent  open  to  the  whole 
merchant  navy  of  the  United  States  on  the  same  liberal  conditions  as 
heretofore  accorded. 

"  The  whole  respectfully  submitted. 

"  George  E.  Foster, 
''Minister  of  Marine  and  Fisheries. 

"Ottawa,  June  5.  1886:'     (For.  Rel.  188H.  4(J4.) 

On  January  28,  1887,  the  British  minister  at  AVashington  communi- 
cated   to   the    Department    of   State   a    copy   of   an 
Keport  of  the  Cana-  approved  minute  of  the  privy  council  of  Canada  of 

/*^.  November  2,  1886,  accompanied  with  a  report  of  Mr. 

justice.  '  ^  .    .  i   .        . 

J.  S.  D.  Thompson,  Canadian  minister  of  ju.stice,  of 

July  22,  1886,  in  specific  reply  to  the  note  of  Mr.  Phelps  to  Lord 


844  NATIONAL    JURISDICTIOX  :    TERRITORIAL    LIMITS.  [§  167. 

Kosoborv  of  tlu>  liiul  of  the  pivcedino-  June.  With  regard  to  the 
allefTJitions  of  fact  made  in  hehalf  of  the  vessel,  Mr.  Thompson 
observed  that  they  remained  to  be  proved  in  the  vice-admiralty  court 
at  Halifax,  and  that,  as  the  trial  had  not  been  concluded,  it  was  per- 
haps premature  for  Mr.  Phelps  to  claim  the  restoration  of  the  vessel 
and  assei-t  a  ri<rht  to  damairt's  for  her  detention.  The  vessel,  said 
Mr.  Thompson,  was  on  May  T).  ISSC).  at  a  point  several  miles  within 
Annapolis  Basin,  and  the  suirgestion  that  her  captain  was  under  a 
misai)prehension  as  to  the  locality  could  not  be  sustained.  Afr. 
Phel|)s.  declared  Mr.  Thompson,  was  in  error  in  speakinof  of  Digby 
as  •*  a  small  fishiuir  settlement,  and  its  harbor  not  defined."  Althou<2:h 
some  of  the  peoi)le  on  the  nei<;hborin<)f  shores  en<ra<2:ed  in  fishiu*?,  it 
was  a  town  with  a  i)opulati()U  of  2.000  inhabitants,  and  the  Avell- 
known  harbor  of  Annapolis  Basin  was  entered  through  a  narrow 
strait  called  '*  Digby  Gut."  marked  by  conspicuous  headlands.  Dur- 
ing the  ."ith  and  ()th  of  May  the  vessel  lay  within  the  harbor  at  anchor, 
about  half  a  mile  from  shore,  and  on  the  second  day  she  purchased 
and  took  on  board  from  a  near-by  fishing  weir  four  and  a  half  barrels 
of  bait.  She  also  obtained  two  tons  of  ice.  The  name  of  her  liome 
port  was  kej)t  covered  by  canvas,  and  the  owner  of  the  fishing  weir 
was  told  that  she  was  under  British  register. 

Other  circumstances  were  also  stated  by  ]Mr.  Thompson  contradic- 
tory of  the  allegations  made  on  behalf  of  the  vessel.  With  regard  to 
her  failure  to  report.  Mr.  Thompson  declared  that  the  vessel,  in  going 
to  the  weir  to  purchase  bait,  j^assed  almost  within  hailing  distance  of 
the  custom-house  at  Digby.  and  that  when  she  was  at  the  weir  she 
was  within  one  or  two  miles  of  another  custom-house.  The  captain 
and  ci'ew  were  also  ashore  during  the  ath  and  (ith  of  May.  In  this 
I'elation  Mr.  Thompson  (juoted  the  provisions  of  the  customs  act  of 
Canada,  which  were  not.  he  declared,  essentially  different  from  those 
of  the  Fnited  States;  and.  after  discussing  other  incidents  of  the 
seizure  and  denying  the  allegations  of  harsh  or  improper  action  on 
the  i)art  of  the  Canadian  authorities,  he  repelled  the  inference  of  Mr. 
Phelps  that  the  joining  of  a  charge  of  violation  of  the  customs  law 
with  the  charge  of  violation  of  the  statutes  in  relation  to  fishing  by 
foreign  vessels,  indicated  a  consciousness  that  the  vessel  could  not  be 
foi-feited  on  the  latter  charge.  With  thousands  of  miles  of  coast 
indented,  as  wer<'  the  coasts  of  Canada,  by  hundreds  of  harbors  and 
inlets,  it  was.  said  Mr.  Thompson,  impossible  to  enforce  the  fishery 
law  without  a  strict  enforcement  of  the  customs  law.  The  convention 
of  Isls  ])rovi(led  that  the  American  fishermen  should  be  "  under  such 
rotrictions  as  might  be  necessary  to  prevent  their  taking,  drying,  or 
iiiriug  ti>li  .  .  .  or  in  any  other  manner  whatever  abusing  the  privi- 
l"gc  rocrxcd  to  them."  He  denied  the  statement  made  by  Mr. 
i'iicip-.  on  the  authoritv  of  the  United  States  consul-general  at  Hali- 


§  167.]  THE    NORTHEASTERN    FISHERIES.  845 

fax,  that  it  was  conceded  by  the  customs  authorities  at  Digby  that 
foreign  fishing  vessels  had  for  forty  years  been  accustomed  to  go  in 
and  out  of  the  bay  at  pleasure  without  being  required  to  report  when 
they  had  no  business  with  the  shore.  He  admitted,  however,  that, 
while  the  treaties  of  18.54  and  1871  were  in  force,  and  the  prohibitions 
of  the  convention  of  1818  were  thus  suspended,  "  considerable  laxity," 
much  greater  than  the  treaties  entitled  them  to,  was  allowed  to  United 
States  fishing  vessels;  but  he  declared  that  at  other  times  the  cus- 
toms laws  were  enforced.  In  this  relation  he  cited  the  statement  of 
Mr.  Vail,  Acting  Secretary  of  State  in  1839,  that  numerous  seizures 
had  been  made  for  alleged  violations  of  the  customs  laws "  and  to 
certain  incidents  and  correspondence  in  1870. 

With  regard  to  the  bait  question,  as  affected  by  the  interpretation 
of  the  convention  of  1818,  Mr.  Thompson  maintained  that  by  the 
"  clear  and  unambiguous  "  words  of  that  convention  American  vessels 
wei'e  prohibited  froni  entering  a  Canadian  port  for  any  but  the  four 
specified  purposes,  and  that  there  probably  were  few*  treaties  or 
statutes  the  literal  enforcement  of  Avhich  might  not  in  certain  circum- 
stances produce  consequences  such  as  Mr.  Phelps  had  described  as 
"■  preposterous."  This  argument,  said  Mr.  Thompson,  could  at  most 
only  suggest  that  the  enforcement  of  a  treaty  or  statute  should  not  be 
insisted  on  where  accidental  hardships  were  likely  to  ensue.  Equity 
and  a  natural  sense  of  justice  would  lead  a  government  to  refrain 
from  enforcing  its  rights  under  such  circumstances.  It  was  with  a 
view  to  such  circumstances  that  provision  was  made  in  the  law  for 
the  intervention  of  the  executive,  nor  could  any  authority  be  found 
for  the  position  that  against  the  plain  words  of  a  treaty  or  statute 
an  interpretation  was  to  be  sought  that  would  obviate  all  chances  of 
hardship  and  render  unnecessary  the  exercise  of  executive  interfer- 
ence. In  this  relation  Mr.  Thompson  contended  that  it  was  the  pur- 
pose of  the  parties  to  the  convention  to  prevent  the  fisheries  from 
being  poached  on,  and  to  jireserve  them  to  British  subjects  not  only 
for  the  pursuit  of  fishing  in  territorial  waters,  but  also  as  a  base  of 
supplies  for  the  pursuit  of  fishing  in  the  deep  sea.  It  was,  declared 
Mr.  Thompson,  a  well-known  fact  that  the  negotiations  preceding  the 
convention  "  had  reference  very  largely  to  the  deep-sea  fisheries,  and 
that  the  right  to  purchase  bait  in  the  harbors  of  the  British  posses- 
sions for  the  deep-sea  fishing  was  one  which  the  United  States  fisher- 
men were  intentionally  excluded  from."  On  the  point  that  the  early 
negotiations  related  largely  to  the  deep-sea  fisheries,  he  cited  Schuy- 
ler's American  Diplomacy,  411:  on  the  rules  as  to  the  interpretation 
of  treaties.  Vattel,  lib.  II.,  cap.  17;  Sedgwick  on  the  Construction  of 
Statutes,  194;   Papers  relating  to  the  Treaty  of  Washington,  II.  473; 

"Papers  relating  to  the  Treaty  of  Washiugton,  VI.  283. 


846  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  167. 

III.  44<),  447.  To  ^Ir.  Phelps's  suggestion  that  the  Avords  "for  no 
other  purpose  whatever  "  meant  "  for  no  other  purpose  inconsistent 
with  the  provisions  of  the  treaty."  Mr.  Thompson  replied  that  the 
words  taken  in  that  sense  Avould  have  no  meaning,  since  no  other 
l^urpose  than  those  mentioned  would  be  consistent  with  the  treaty; 
and  he  also  referred  to  the  })assage  in  the  case  of  the  United  States 
before  the  Halifax  Connnission  in  1877,  in  which  it  was  stated  that 
the  j)rivileges  of  traffic  and  of  purchasing  bait  and  other  supplies 
were  not  the  subject  of  compensation  under  the  treaty  of  Washington, 
because  that  treaty  conferred  *'  no  such  rights  on  the  inhabitants  of 
the  United  States,  who  now  enjoy  them  merely  by  sufferance,  and  wdio 
can  at  any  time  be  deprived  of  them  by  the  enforcement  of  existing 
laws  or  the  reenforcement  of  former  oppressive  statutes." 

With  regard  to  the  ])ractical  construction  of  the  treaty  and  of  the 
imperial  act  of  M)  (leorge  III,  cap.  88,  ^Ir.  Thompson  argued  that 
the  British  authorities  had  not  acted  on  the  theory  that  they  per- 
mitted the  ])urchase  in  territorial  waters  of  bait  to  be  used  outside. 
Tu  this  relation  he  referred  to  the  seizure  and  condemnation  of  the 
vessels  Mahhy  and  Wdshinr/foH,  in  1818,  "  for  entering  and  harboring 
in  British- American  waters:  "  of  the  Jara.  Independenee,  Magnolia., 
and  Hart,  in  1835,  "the  principal  charge  being  that  they  were  within 
British-American  waters  without  legal  cause:  "  of  the  Papmeau  and 
J/ary,  in  1840,  "  for  purchasing  bait :  "  of  the  Charles,  in  New  Bruns- 
wick, in  1819,  "  for  having  resorted  to  a  harbor  of  that  province  after 
warning  and  without  necessity:"  and  of  the  •/.  11.  Xickersort,  in 
Xova  Scotia,  in  1871,  "  for  having  purchased  bait  within  three  marine 
miles  of  the  Nova  Scotian  shore." "  ^Ir.  Thompson  added  that  the 
decision  in  the  case  of  the  -/.  11.  Xirl'er.'ion  was  subsequent  to  that  in 
the  case  of  the  W/u'fe  Fairn,  which  was  cited  by  Mr.  Phelps.  He 
also  denied  that  the  Parliament  of  Canada  had  endeavored  to  alter  or 
enlarge  the  provisions  of  the  act  of  the  Imperial  Parliament,  or  to 
give  to  the  convention  of  1818  an  unwarranted  ccmstruction :  and  he 
maintained  the  right  of  the  Parliament  of  Canada  in  accordance  with 
constitutional  forms  to  legislate  for  the  enforcement  of  the  treaty. 
He  referred  to  the  circulars  of  the  Treasury  Department  of  the 
United  States  of  May  and  June,  1870,  as  having  "  completely  aban- 
doned "  the  "  vain  contention  ""  that  the  colonial  statutes  were  invalid. 
Mr.  Thompson  also  denied  that  the  Canadian  statute  of  1886  had  l)een 
passed  in  haste,  or  that  it  made  illegal  any  act  which  was  legal 
l)efore.  The  act,  he  said,  declared  what  penalty  should  attach  to 
effenses  which  were  already  prohil)ited.  and,  he  observed,  that  before 
the  art  was  passed  the  Congress  of  the  United  States  had  adopted  a 
>tatute  authorizing  the  President  by  proclamaticm  to  exclude  under 

^  See  proceedings  of  the  Halifax  Commission,  IIL  3398. 


§  1^^-]  THE    NORTHEASTERN    FISHERIES.  847 

penalties  the  vessels  of  any  foreign  country  from  the  exercise  in  the 
ports  of  the  Ignited  States  of  such  commercial  privileges  as  were 
denied  to  American  vessels  in  the  ports  of  such  foreign  country." 

Sir  L.  West,  Brit.  niin..  to  Mr.  Bayard,  Sec.  of  State.  Jan.  28,  1887,  For. 
Rel.  1887,  .502.  enclosing  report  of  Mr.  Thompson,  Canadian  Minister 
of  Justice,  of  July  22.  1886. 

April  25.  1888,  the  British  minister  at  Washington  communicated 
to  the  Department  of  State  a  copy  of  a  minute  of  the  Canadian  privy 
council,  concurring  in  a  recommendation  of  the  minister  of  justice, 
who  advised  that  the  proceedings  against  the  Darid  J.  Adam)<  ar.d 
Ella  M.  Doughty,  for  violation  of  the  fishery  statutes,  be  discon- 
tinued on  the  imderstanding  that  the  owners  would  give  an  undertak- 
ing which  would  prevent  the  discontinuance  from  being  made  the  basis 
of  a  claim  for  damages  or  ex])enses.  The  reason  given  in  the  minute 
for  the  discontinuance  was  "  that  these  i)roceedings  were  taken  for 
the  purpose  of  asserting  and  establishing  the  right  of  Canada,  under 
the  convention  of  1818.  to  prevent  the  purchase  of  bait  and  other 
fishing  supplies  in  Canadian  ports  by  Ignited  States  fishing  vessels 
and  to  prevent  such  vessels  from  entering  such  ports  for  the  shipping 
of  crews;"  and  that  "as  the  result  of  the  negotiations  lately  con- 
cluded at  Washington  had  been  to  show  that  no  further  difference  of 
o])inion  between  the  two  Governments  on  the  points  was  to  be  appre- 
hended," it  appeared  to  be  "  unnecessary  that  a  judicial  decision 
should  be  sought  to  affirm  the  right  above  mentioned.'' 

Sir  L.  West,  British  min.,  to  Mr.  Bayard,  Sec.  of  State,  April  25,  188^\ 
For.  Rel.  1888,  I.  802. 

"  The  Everett  Steele^  a  fishing  vessel  of  Gloucester,  Mass.,  in  the 

United  States,  of  which  Charles  E.  Forbes,  an  Ameri- 
Case  of  the  "Ever-  •,.  ,  i^      i.   i.  \  au 

,  „^    ,   ,,         can  citizen,  was  master,  was  about  to  enter,  on  the 
ett  Steele. 

10th  of  September,  1886,  the  harbor  of  Shelburne, 

Nova  Scotia,  to  procure  water  and  for  shelter  during  repairs.     She 

was  hailed,  when  entering  the  harbor,  by  the  Canadian  cutter  Terror^ 

\)\    whose   captain.   Quiglev.   her   pai)ers   were   taken    and   retained. 

Captain  Forbes,  on  arriving  off  the  town,  anchored  and  went  with 

Captain   Quigley  to  the  custom-house,  who  asked  him   whether  he 

reported  Avhenever  he  had  come  in.     Captain  Forbes  answered  that  he 

had  reported  always,  with  the  exception  of  a  visit  on  the  25th  of 

March,  when  he  was  driven  into  the  lower  harbor  for  shelter  by  a 

.>-torm  and  where  he  remained  only  eight  hours.     The  collector  did  not 

consider  that  this  made  the  vessel  liable,  but  Captain  Quigley  refused 

to  discharge  her;  said  he  would  keep  her  until  he  heard  from  Ottawa, 

put  her  in  charge  of  policemen,  and  detained  her  until  the  next  day, 


o  Section  17  of  act  No.  85,  1886. 


848  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  167. 

when  at  noon  she  was  discharged  by  the  collector;  but  a  calm  having 
come  on  she  could  not  get  to  sea,  and  by  the  delay  her  bait  was  spoiled 
and  the  expected  profits  of  her  trip  lost. 

**  It  is  scarcely  necessary  for  me  to  remind  3'ou,  in  presenting  this 
case  to  the  consideration  of  your  (lovernment.  that  when  the  north- 
eastern coast  of  America  was  wrested  from  France  in  a  large  measure 
l)y  the  valor  and  enterprise  of  Xew  England  fishermen,  the}-  enjoyed, 
in  connnon  with  other  British  subjects,  the  control  of  the  fisheries 
with  which  that  coast  was  enriched,  and  that  by  the  treaty  of  peace  of 
1783.  which,  as  was  said  by  an  eminent  English  judge  when  treating 
an  analogous  question,  was  a  treaty  of  'separation,'  this  right  wa.-^ 
expressly  affirmed. 

"  It  is  true  that  by  the  treaty  of  1818,  the  Ignited  States  renounced 
a  jjortion  of  its  rights  in  these  fisheries,  retaining,  however,  the  old 
prerogatives  of  visiting  the  bays  and  harbors  of  the  British  north- 
eastern i)ossessions  for  the  purpose  of  obtaining  Avood.  water,  and 
shelter,  and  for  objects  incidental  to  those  other  rights  of  territoriality 
so  retained  and  confirmed.  What  is  the  nature  of  these  incidental 
prerogatives,  it  is  not.  in  considering  this  case,  necessary  to  discuss. 
It  is  enough  to  say  that  Captain  Forbes  entered  the  harl)or  of  Shel- 
bui"ne  to  oi)tain  shelter  and  water,  and  that  he  had  as  much  right  to 
1k'  there  under  the  treaty  of  1818,  confirming  in  this  respect  the 
ancient  })rivileges  of  American  fishermen  on  those  coasts,  as  he  would 
have  had  on  the  high  seas,  carrying  on.  under  shelter  of  the  flag  of  the 
Fnited  States,  legitimate  connnerce.  The  (iovernment  which  you  so 
honorably  represent  has.  with  its  usual  candor  and  magnanimity,  con- 
ceded that  when  a  merchant  vessel  of  the  United  States  is  stopped  in 
time  of  peace  i)y  a  British  cruiser  on  the  groundless  sus})icion  of  being 
a  slave  trader,  damages  are  to  be  paid  to  this  (iovernment  not  merely 
to  redress  the  injury  suffered,  but  as  an  apology  for  the  insult  off^ered 
to  the  Hag  of  the  I'nited  States.  But  the  case  now  presented  to  you 
i>  a  nuich  stronger  one  than  that  of  a  seizure  on  the  high  seas  of  a 
sjiip  unjustly  suspected  of  In'ing  a  slaver.  When  a  vessel  is  seized  on 
the  high  seas  on  such  a  suspicion,  its  seizure  is  not  on  waters  where  its 
rights.  I>ased  on  i)rior  and  continuous  ownership,  are  guaranteed  by 
the  >o\('reign  making  the  seizure.  If  in  such  case  the  property  of  the 
ownei's  is  injure«l.  it  i>,  ho\ve\er  wrongful  the  act,  a  case  of  rare 
occui-rence,  on  seas  comparatively  unfre(piente(l,  with  consequences 
not  vei'v  far-reaching:  and  if  a  blow  is  struck  at  a  system  of  Avhich 
>\\v\]  vessel  is  unjustly  supposed  to  be  a  part,  such  system  is  one  which 
ihe  civilized  world  execrates.  B'lt  seizures  of  the  character  of  that 
which  I  now  present  to  you  have  no  such  features.  They  are  made  in 
waters  not  only  conquered  and  owned  by  American  fi-hermen,  but  for 
I  he  very  |)urpose  for  which  they  were  being  used  by  Captain  Forbes, 


§  167.]  THE    NORTHEASTERN    FISHERIES,  849 

guaranteed  to  tlieiii  by  two  successive  treaties  between  the  United 
States  and  Great  Britain. 

•'  These  fishermen  also.  I  may  be  permitted  to  remind  you,  were 
engaged  in  no  nefarious  trade.  They  pursue  one  of  the  most  useful 
and  meritorious  of  industries.  They  gather  from  the  seas,  without 
detriment  to  others,  a  food  which  is  nutritious  and  cheap,  for  the  use 
of  an  immense  population.  They  belong  to  a  stock  of  men  which  con- 
tributed before  the  Revolution  most  essentially  to  British  victories  on 
the  northeastern  Atlantic,  and  it  may  not  be  out  of  place  m  say 
they  have  shown  since  that  Revolution,  when  serving  in  the  Navy  of 
the  United  States,  that  they  have  lost  none  of  their  ancient  valor, 
hardihood,  and  devotion  to  their  flag. 

*•  The  indemnity  which  the  United  States  has  claimed,  and  which 
Great  Britain  has  conceded,  for  the  visitation  and  search  of  isolated 
merchantmen  seized  on  remote  African  seas  on  unfounded  suspicion 
of  being  slavers,  it  can  not  do  otherwise  now  than  claim,  with  a 
gravity  which  the  importance  of  the  issue  demands,  for  its  fishermen 
seized  on  waters  in  which  they  have  as  much  right  to  traverse  for  shel- 
ter as  have  the  vessels  by  which  they  are  molested.  This  shelter,  it  is 
important  to  observe,  they  will  as  a  class  be  debarred  from  if  annoy- 
ances such  as  I  now  submit  to  you  are  permitted  to  be  inflicted  on 
them  by  minor  officials  of  the  British  provinces. 

'"  Fishermen,  as  you  are  aware,  have  been  considered,  from  the 
usefulness  of  their  occupation,  from  their  simplicity,  from  the  perils 
to  which  they  are  exjwsed,  and  from  the  small  quantity  of  provisions 
and  protective  implements  they  are  able  to  carry  with  them,  the  wards 
of  civilized  nations;  and  it  is  one  of  the  peculiar  glories  of  Great 
Britain  that  she  has  taken  the  position — a  position  now  generally 
accepted — that  even  in  time  of  war  the}'  are  not  to  be  the  subjects  of 
capture  b}'  hostile  cruisers.  Yet,  in  defiance  of  this  immunity  thus 
generously  awarded  by  humanity  and  the  laws  of  nations,  the  very 
shelter  which  they  own  in  these  seas,  and  which  is  ratified  to  them  by 
two  successive  treaties,  is  to  i)e  denied  to  them,  not,  I  am  confident, 
by  the  act  of  the  wise,  humane,  and  magnanimous  Government  you 
represent,  l>ut  by  deputies  of  deputies  permitted  to  pursue,  not  unin- 
fluenced by  local  rivalry,  these  methods  of  annoyance  in  fishing  waters 
which  our  fishermen  have  as  much  right  to  visit  on  lawful  errands  as 
those  officials  have  themselves.  For  let  it  be  remembered  that  by  an- 
noyances and  expulsions  such  as  these  the  door  of  shelter  is  shut  to 
American  fishermen  as  a  class. 

'•  If  a  single  refusal  of  that  shelter,  such  as  the  present,  is  sustained, 
it  is  a  refusal  of  shelter  to  all  fishermen  pursuing  their  tasks  on  those 
inhospitable  coasts.     Fishermen  have  not   funds  enough  nor  outfit 

H.  Doc.  551 54 


850  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  167. 

ciioufrli.  nor.  I  may  add.  recklessness  enough  to  put  into  harbors  where, 
perfect  as  is  their  titk\  they  meet  with  such  treatment  as  that  suffered 
by  Captain  Forl)es. 

"  To  sanction  such  treatment,  therefore,  is  to  sanction  the  refusal  to 
the  United  States  fishermen  as  a  body  of  that  shelter  to  which  they  are 
entitled  by  ancient  right,  by  the  law  of  nations,  and  by  solemn  treaty. 
Nar  is  this  all.  That  treaty  is  a  part  of  a  system  of  mutual  conces- 
sions. As  was  stated  by  a  most  eminent  English  judge  in  the  case  of 
Sutton  r.  Sutton  (1  Myl.  &  R.  675).  which  I  have  already  noticed, 
it  was  the  principle  of  the  treaty  of  peace,  and  of  the  treaties  which 
followed  between  (treat  Britain  and  the  United  States,  that  the 
•  subjects  of  the  two  parts  of  the  divided  Emi^ire  should,  notwith- 
standing the  separation,  be  protected  in  the  mutual  enjoyment '  of 
the  rights  those  treaties  affirmed.  If,  as  I  can  not  permit  myself  to 
Ijelieve.  Great  Britain  should  refuse  to  citizens  of  the  United  States 
the  enjoyment  of  the  plainest  and  most  undeniable  of  these  rights,  the 
conse(juences  would  be  so  serious  that  they  can  not  be  contemplated 
by  this  (xovernment  but  with  the  greavest  cojicern." 

Mr.  Bayard.  Set-,  of  State,  to  Sir  L.  West.  British  iniii..  Oct.  19.  1886, 
P^or.  Kel.  ISSt).  410. 

On  October  20,  188(>.  Mr.  Bayard  addressed  to  the  British  minister 
another  note  complaining  of  the  imjwsition  of  a  fine  on  the  fishing 
schooner  Pearl  ychon.  at  Arichat.      (For.  Kel.  188(3.  421.) 

*■  The  committee  of  the  privy  council  have  had  under  considera- 
tion a  dispatch,  dated  November  2*2,  1886,  from  the  Secretary  of  State 
for  the  colonies,  inclosing  letters  from  Mr.  Secretary  Bayard,  bear- 
ing date  llHh  October,  and  referring  to  the  cases  of  the  schooners 
PetuJ  Xchon  and  E  rerett  Steele. 

"  The  minister  of  marine  and  fisheries,  to  whom  the  dispatch  and 
inclosures  were  referred,  reports  that  in  reply  to  a  telegram  from  the 
"secretary  of  State  for  the  colonies,  an  order  in  council,  pas.-ed  on  the 
ISth  November  last,  containing  a  full  statement  of  facts  regarding  the 
detention  of  the  above-named  vessels,  was  transmitted  to  Mr.  Stan- 
hope: it  will  not  therefore  be  necessary  to  repeat  this  statement  in  the 
jn'esent  rej)()rt. 

"  The  minister  observes  in  the  first  jjlace  that  the  two  fishing 
>chooiiers  K rerett  Steele  and  PearJ  .XeJi^on  were  not  detained  for  any 
alleged  contravention  of  the  treaty  of  1818  or  the  fishery  laws  of 
*!'anada.  but  solely  for  the  violation  of  the  customs  law.  By  this  law 
all  vessels  of  whatever  character  are  required  to  report  to  the  col- 
lector of  customs  immediately  upon  entering  port,  and  are  not  to 
l>i-cak  l)ulk  or  land  crew  or  cargo  before  this  is  done. 

•■  The  minister  states  that  the  captain  of  the  li  rerett  Steele  had  on  a 
])rt'vious  voyage  entered  the  port  of  Shelburne  on  the  25th  March, 


§  167.]  ^     THE    NORTHEASTERN    FISHERIES.  851 

1(S86,  and  after  remaining  for  eight  hours  had  put  to  sea  again  with- 
out reporting  to  the  customs.  For  this  previous  ofli'ense  he  was,  upon 
entering  Shelburne  Harbor  on  the  10th  September  last,  detained  and 
the  facts  were  reported  to  the  minister  of  customs  at  Ottawa.  "With 
these  facts  was  coupled  the  captain's  statement  that  on  the  occasion 
of  the  previous  offense  he  had  been  misled  by  the  deputy  harbor- 
master, from  whom  he  understood  that  he  would  not  be  obliged  to 
report  unless  he  remained  in  harbor  for  twenty-four  hours.  The 
minister  accepted  the  statement  in  excuse  and  the  Everett  Steele  Avas 
allowed  to  proceed  on  her  voyage. 

"The  customs  laws  had  been  violated;  the  captain  of  the  Everett 
Steele  admitted  the  violation,  and  for  this  the  usual  penalty  could 
have  been  legally  enforced.  It  was,  however,  not  enforced,  and  no 
detention  of  the  vessel  occurred  beyond  the  time  necessary  to  report 
the  facts  to  headquarters  and  obtained  the  decision  of  the  minister. 

"  The  minister  submits  that  he  can  not  discern  in  this  transaction 
any  attempt  to  interfere  with  the  privileges  of  United  States  fishing 
vessels  in  Canadian  w^aters  or  any  sufficient  case  for  the  protest  of  Mr. 
Bayard. 

The  minister  states  that  in  the  case  of  the  Pearl  Nelson  no  question 
was  raised  as  to  her  being  a  fishing  vessel  or  her  enjoyment  of  any 
privileges  guaranteed  by  the  treaty  of  1818.  Her  captain  was 
charged  with  a  violation  of  the  customs  law,  and  of  that  alone,  by 
having,  on  the  day  before  reporting  to  the  collector  of  customs  at 
Arichat,  landed  ten  of  his  creAV. 

''  This  h'e  admitted  upon  oath.  When  the  facts  were  reported  to 
the  minister  of  customs  he  ordered  that  the  vessel  might  proceed 
upon  depositing  $"200,  pending  a  fuller  examination.  This  was  done, 
and  the  fuller  examination  resulted  in  establishing  the  violation  of  the 
law  and  in  finding  that  the  i)enalty  was  legally  enforceable.  The 
minister,  however,  in  consideration  of  the  alleged  ignorance  of  the 
captain  as  to  what  constituted  an  infraction  of  the  law,  ordered  the 
deposit  to  be  refunded. 

"  In  this  case  there  was  a  clear  violation  of  Canadian  law ;  there 
was  no  lengthened  detention  of  the  vessel;  the  dej^osit  was  ultimately 
I'emitted,  and  the  United  States  consul-general  at  Halifax  expressed 
himself  by  letter  to  the  minister  as  highly  pleased  at  the  result. 

"  The  minister  observes  that  in  this  case  he  is  at  a  loss  to  discover 
any  well-founded  grievance  or  any  attempted  denial  of  or  interfer- 
ence with  any  privileges  guaranteed  to  United  States  fishermen  by 
the  treaty  of  1818. 

"  The  minister  further  observes  that  the  whole  argument  and  pro- 
test of  Mr.  Bayard  appears  to  proceed  upon  the  assumption  that  these 
two  vessels  were  subjected  to  unwarrantable  interference  in  that  they 
Avere  called  upon  to  submit  to  the  requirements  of  Canadian  customs 


852  NATIONAL  jurisdiction:   territorial  limit?.        [§167. 

law.  and  that  this  intorference  was  prompted  by  a  desire  to  curtail 
or  deny  the  j)rivileges  of  resort  to  Canadian  harbors  for'the  purposes 
alk)\ved  hy  the  treaty  of  1818. 

'•  It  is  needless  to  say  that  this  assumption  is  entirely  incorrect. 

••  Canada  has  a  very  large  extent  of  seacoast  with  numberless  ports, 
into  which  foreign  vessels  are  constantly  entering  for  purpo.ses  of 
trade.  It  Ix'conies  necessary  in  the  interests  of  legitimate  commerce 
that  stringent  regulations  should  be  nuide  by  compulsory  conformity 
to  which  illicit  traffic  should  be  i)revented.  These  customs  regula- 
tions all  vessels  of  all  countries  are  obliged  to  obey,  and  these  they 
do  obey,  without  in  any  way  considering  it  a  hardship.  United 
States  Hshing  vessels  come  directly  from  a  foreign  and  not  distant 
count  IT.  and  it  is  not  in  the  interests  of  legitimate  Canadian  com- 
merce that  they  should  l)e  allowed  access  to  our  ports  without  the 
same  strict  supervision  as  is  exercised  over  all  other  foreign  vessels, 
otherwise  there  would  be  no  guaranty  against  illicit  traffic  of  large 
dimensions  to  the  injury  of  honest  trade  and  the  serious  diminution 
of  the  Canadian  revenue.  United  States  fishing  vessels  are  cheer- 
fully accorded  the  right  to  enter  Canadian  ports  for  the  purpose  of 
obtaining  shelter,  repairs,  and  ])rocuring  wood  and  Avater;  but  in 
exercising  this  right  they  are  not,  and  can  not  be,  independent  of  the 
customs  laws.  They  have  the  right  to  enter  for  the  purposes  set 
forth,  but  there  is  only  one  legal  way  in  which  to  enter,  and  that  is 
by  conformity  to  the  customs  regulations. 

••  When  Mr.  Bayard  asserts  that  Captain  Forbes  had  as  much 
right  to  be  in  Shelburne  Harbor  seeking  shelter  and  water  *  as  he 
would  have  had  on  the  high  seas  carrying  on  under  shelter  of  the  flag 
of  the  United  States  legitimate  commerce,'  he  is  undoubtedly  right, 
but  when  he  declares,  as  he  does  in  reality,  that  to  compel  Captain 
Forbes,  in  Shelburne  IIa!'l)or.  to  conform  to  Canadian  customs  regu- 
lations, or  to  iMinish  him  for  their  violation,  is  a  more  unwarrantable 
>tretch  of  power  than  "  tluit  of  seizure  on  the  high  seas  of  a  ship 
unjustly  susj)ect»'d  of  being  a  slaver.'  he  makes  a  statement  which 
carries  with  it  its  own  refutation. 

"  Customs  regulations  are  made  by  each  country  for  the  protection 
of  its  own  trade  and  commerce,  and  are  enforced  entirely  within  its 
own  territorial  jurisdiction,  while  the  seizure  of  a  vessel  upon  the 
high  seas,  except  under  extraordinary  and  abnormal  circumstances, 
is  an  unjustiflable  interference  Avith  the  free  right  of  navigation  com- 
n)on  to  all  nations. 

"As  to  Mr.  Bayard's  observation  that  by  treatment  such  as  that 
cxix'rienced  by  the  Ererctt  Steele,  'the  door  of  shelter  is  shut  to 
Amei'ican  fishermen  as  a  class,'  the  minister  expresses  his  belief  that 
Mr.  Bayard  can  not  have  considered  the  scope  of  such  an  assertion 
or  the  inferences  which  might  reasonably  be  drawn  from  it. 


§  16T.]  THE    NOKTHEASTERlSr    FISHERIES.  853 

"  If  a  United  States  fishing  vessel  enters  a  Canadian  port  for 
shelter,  repairs,  or  for  wood  and  water,  her  captain  need  have  no 
difficulty  in  reporting  her  as  having  entered  for  one  of  those  purposes, 
and  the  Everett  Steele  would  have  surt'ered  no  detention  had  her 
captain,  on  the  25th  March,  simply  reported  his  vessel  to  the  col- 
lector. As  it  was,  the  vessel  was  detained  for  no  longer  time  than  was 
necessary  to  obtain  the  decision  of  the  minister  of  customs,  and  the 
penalty  for  which  it  was  liable  Avas  not  enforced.  Surely  Mr.  Bayard 
does  not  wish  to  be  understood  as  claiming  for  United  States  fishing 
vessels  total  immunity  from  all  customs  regulations,  or  as  inti- 
mating that  if  they  can  not  exercise  their  privileges  unlawfully  they 
will  not  exercise  them  at  all. 

''  Mr,  Bayard  complains  that  the  Pearl  Nelson^  although  seeking 
to  exercise  no  commercial  privileges,  was  compelled  to  pay  commer- 
cial fees,  such  as  are  applicable  to  trading  vessels.  In  reply  the 
minister  observes  that  the  fees  spoken  of  are  not  '  commercial  fees;  ' 
they  are  harbormaster's  dues,  which  all  vessels  making  use  of  legally 
constituted  harbors  are,  by  law,  compelled  to  pay,  and  entirely  irre- 
spective of  any  trading  that  may  be  done  by  the  vessel. 

"  The  minister  observes  that  no  single  case  has  yet  been  brought  to 
his  notice  in  which  any  United  States  fishing  vessel  has  in  any  way 
been  interfered  with  for  exercising  any  rights  guaranteed  under  the 
treaty  of  1818  to  enter  Canadian  ports  for  shelter,  repairs,  wood,  or 
water;  that  the  Canadian  government  would  not  countenance  or 
permit  any  such  interference,  and  that  in  all  cases  of  this  class  when 
trouble  has  arisen  it  has  been  due  to  a  violation  of  Canadian  customs 
law,  which  demands  the  simple  legal  entry  of  the  vessel  as  soon  as 
it  comes  into  port.'' 

Approved  report  of  a  committee  of  the  privy  council  of  Canada,  embodying 
a  report  of  the  minister  of  marine  and  fisheries ;  connuunicated  to  the 
Government  of  the  United  States  by  the  British  minister  at  Wash- 
ington April  4,  1887,  For.  Ilel.  1887.  517. 

See  also  a  dispatch  of  I^ord  I>ansdo\vne,  governor-general  of  Canada,  to 
Mr.  Stanhope,  sec.  of  state  for  the  colonies,  Dec.  20,  188(>,  id.  51tt. 

"  On  October  7,  188(),  the  United  States  fishing  vessel,  the  Marion 
Orime.s^  of  (iloucester,  Mass.,  Alexander  Landry,  a 
Case  of  the  "Ma-  citizen  of  the  United  States,  being  her  captain,  ar- 
rived shortly  before  midnight,  under  stress  of 
weather,  at  the  outer  liarbor  of  Shelburne,  Nova  Scotia.  The  night 
was  stormy,  with  a  strong  head-wind  against  lier,  and  her  sole  object 
was  temporary  shelter.  She  remained  at  the  spot  where  she  anchored, 
which  was  about  seven  miles  from  the  port  of  Shelburne,  no  one  leav- 
ing her  until  6  o'clock  the  ne.xt  uiorning,  when  she  hoisted  sail  in 
order  to  put  to  sea.    She  had  scarcely  started,  however,  before  she  was 


854  NATIONAL    JURTSDTCTTON  :    TERRITORIAL    LIMITS.  [§  167. 

anvsted  and  boarded  by  a  boat's  crew  from  the  Canadian  cruiser  Ter- 
ror. Captain  Landry  was  compelled  to  proceed  to  Shelburne,  about 
seven  miles  distant,  to  report  to  the  collector.  When  the  report  was 
made.  Captain  Landry  was  informed  that  he  was  fined  $400  for  not 
report inof  on  the  previous  night.  He  answered  that  the  custom-house 
Avas  not  open  during  the  time  that  he  was  in  the  outer  harbor.  He 
further  insisted  that  it  was  obvious  from  the  storm  that  caused  him  to 
take  shelter  in  that  harbor,  from  the  shortness  of  his  stay,  and  from 
the  circumstances  that  his  equipments  were  exclusively  for  deep-sea 
fishing,  and  that  he  had  made  no  effort  whatever  to  approach  the 
shore,  that  his  object  was  exclusively  to  find  shelter.  The  fine,  how 
ever,  being  imposed  i)rincipally  through  the  urgency  of  Captain 
Quigley,  commanding  the  Terror^  Captain  Landry  was  informed  that 
he  was  to  be  detained  at  the  port  of  Shelburne  until  a  deposit  to  meet 
the  fine  was  made.  He  consulted  Mr.  White,  the  United  States  con- 
sular agent  at  Shelburne,  who  at  once  telegraphed  the  facts  to  Mr. 
Phelan.  I"!^nited  States  consul-general  at  Halifax,  it  being  of  great 
importance  to  Captain  Landry,  and  to  those  interested  in  his  venture, 
that  he  should  proceed  on  his  voyage  at  once.  Mr.  Phelan  then  tele- 
graphed to  the  assistant  commissioner  of  customs  at  Ottawa  that  it 
was  impossible  for  Captain  Landry  to  have  reported  while  he  was  in 
the  outer  harbor  on  the  8th  instant,  and  asking  that  the  deposit  re- 
quired to  release  the  vessel  be  reduced.  He  was  told  in  reply  that  the 
minister  declined  to  reduce  the  deposit,  but  that  it  might  be  made  at 
Halifax.  Mr.  Phelan  at  once  deposited  at  Halifax  the  $400,  and 
telegraphed  to  Captain  Landry  that  he  was  at  liberty  to  go  to  sea. 
On  the  evening  of  October  11  Mr.  Phelan  received  a  telegram  from 
Captain  Ijandrv.  who  had  already  been  kept  four  days  in  the  port, 
stating  that  *  the  custom-house  officers  and  Captain  Quigley  '  refused 
to  let  him  go  to  sea.  ^Ir.  Phelan  the  next  morning  called  on  the  col- 
lector at  Halifax  to  ascertain  if  an  order  had  issued  to  release  the 
vessel,  and  was  informed  that  the  order  had  been  given,  '  but  that  the 
collector  and  captain  of  the  cruiser  refused  to  obe}'^  it,  for  the  reason 
that  the  captain  of  the  seized  vessel  hoisted  the  American  flag  while 
she  was  in  custody  of  Canadian  officials.'  Mr.  Phelan  at  once  tele- 
graphed this  state  of  facts  to  the  assistant  commissioner  at  Ottawa, 
and  received  in  reply,  under  date  of  August  12,  the  announcement 
(hat  *  collector  has  ])een  instructed  to  release  the  Grimes  from  customs 
seizure.  This  dej^artment  has  nothing  to  do  with  other  charges.' 
On  the  same  day  a  dispatch  from  the  conunissioner  of  customs  at 
( )ttawa  was  sent  to  the  collector  of  customs  at  Halifax  reciting  the 
oi-der  to  release  the  fr'riwrs.  and  saying  '  this  [the  customs]  depart- 
ment has  nothing  to  do  with  other  charges.  It  is  department  of 
marine.' 


§  167.]  THE    NORTHEASTERN    FISHERIES.  855 

'"  The  facts  as  to  the  flag  were  as  follows : 

"On  Octoljer  11.  the  Marion  Grimes,  being  then  under  arrest  by 
order  of  local  officials  for  not  immediately  reporting  at  the  custom- 
house, hoisted  the  American  flag.  Captain  Quiglev.  who,  represent- 
ing, as  appeared,  not  the  revenue,  but  the  marine  department  of  the 
Canadian  administration,  was,  with  his  *  cruiser.'  keeping  guard  over 
the  vessel,  ordered  the  flag  to  be  hauled  down.  This  order  was 
obeved;  but  about  an  hour  afterwards  the  flag  was  again  hoisted, 
whereupon  Captain  Quigley  boarded  the  vessel  with  an  armed  crew 
and  lowered  the  flag  himself.  The  vessel  was  finally  released  under 
orderrs  of  the  customs  department,  being  compelled  to  pay  $8  costs  in 
addition  to  the  deposit  of  $400  above  specified. 

••  The  seriousness  of  the  damage  inflicted  on  Captain  Landry  and 
those  interested  in  his  venture  will  be  understood  when  it  is  consid- 
ered that  he  had  a  crew  of  twelve  men,  with  full  supplies  of  bait, 
which  his  detention  spoiled. 

''  You  will  at  once  see  that  the  grievances  I  have  narrated  fall  under 
two  distinct  heads. 

'•  The  first  concerns  the  boarding  by  Captain  Quigley  of  the  Marion 
Grimes  on  the  morning  of  October  8th.  and  compelling  her  to  go  to 
the  town  of  Shelburne,  there  subjecting  her  to  a  fine  of  $400  for 
visiting  the  port  without  reporting,  and  detaining  her  there  arbi- 
trarily four  days,  a  portion  of  which  time  was  after  a  deposit  to 
meet  the  fine  had  been  made. 

'■  This  particular  wrong  I  now  proceed  to  consider  with  none  the 
less  gravity,  because  other  outrages  of  the  same  class  have  been  per- 
petrated by  Captain  Quigley.  On  August  18th  last  I  had  occasion, 
as  you  will  see  by  the  annexed  papers,  to  bring  to  the  notice  of  the 
British  minister  at  this  capital  several  instances  of  aggression  on  the 
part  of  Captain  Quigley  on  our  fishing  vessels.  On  October  19,  1886, 
I  had  also  to  bring  to  the  British  minister's  notice  the  fact  that 
Captain  Quigley  had,  on  September  the  10th,  arbitrarily  arrested  the 
Everett  Steele,  a  United  States  fishing  vessel,  at  the  outer  port  of 
Shelburne.  To  these  notes  I  have  received  no  reply.  Copies  ai"e 
transmitted,  with  the  accompanying  j^apers,  to  you  in  connection 
with  the  i)resent  instruction,  so  that  the  cases,  as  part  of  a  class,  can 
be  presented  by  you  to  Her  Majesty's  Government. 

*■  Were  there  no  treaty  relations  whatever  l)etween  the  United 
States  and  (ireat  Britain,  were  the  United  States  fishermen  without 
any  other  right  to  visit  those  coasts  than  are  j^ossessed  by  the  fishing 
craft  of  any  foreign  country  simply  as  such,  the  arrest  and  boarding 
of  the  Grimes,  as  above  detailed,  followed  by  forcing  her  into  the 
port  of  Shelburne,  there  subjecting  her  to  fine  for  not  reporting, 
and  detaining  her  until  her  bait  and  ice  were  spoiled,  are  wrongs 


856  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  167. 

which  I  am  sure  Her  Majesty's  (Toverniiient  will  be  prompt  to  redress. 
No  Governments  have  been  more  earnest  and  resolute  in  insisting  that 
vessels  driven  by  stress  of  weather  into  foreign  harbors  should  not 
be  subject  to  jiort  exactions  than  the  Governments  of  Great  Britain 
and  the  United  States.  So  far  has  this  solicitude  been  carried  that 
both  (iovernments,  from  motives  of  humanity,  as  well  as  of  interest 
as  leading  maritime  powers,  have  adopted  many  measures  by  Avhich 
foreigners  as  well  as  citizens  or  subjects  arriving  within  their  terri- 
torial waters  may  be  protected  from  the  perils  of  the  sea.  For  this 
purpose  not  merely  light-houses  and  light-ships  are  placed  by  us  at 
points  of  danger,  but  an  elaborate  life-saving  service,  well  equipped 
with  men,  boats,  and  appliances  for  relief,  studs  our  seaboard  in 
order  to  render  aid  to  vessels  in  distress,  without  regard  to  their 
nationality.  Other  benevolent  organizations  are  sanctioned  by  Gov- 
ernment which  bestow  rewards  on  those  wno  hazard  their  lives  in 
the  protection  of  life  and  property  in  vessels  seeking  in  our  waters 
i-efuge  from  storms.  Acting  in  this  spirit  the  Government  of  the 
United  States  has  been  zealous,  not  merely  in  opening  its  ports 
freely,  without  charges  to  vessels  seeking  them  in  storm,  but  in  in- 
sisting that  its  own  vessels,  seeking  foreign  ports  under  such  cir- 
cumstances, and  exclusively  for  such  shelter,  are  not  under  the  law  of 
nations  subject  to  custom-house  exactions. 

"  '  In  cases  of  vessels  carried  into  British  ports  by  violence  or  stress 
of  weather  [said  Mr.  Webster  in  instructions  to  Mr.  Everett,  June  28, 
1842]  we  insist  that  there  shall  be  no  interference  from  the  land  with 
the  relation  or  personal  condition  of  those  on  board,  according  to  the 
laws  of  their  own  country ;  that  vessels  under  such  circumstances 
shall  enjoy  the  conmion  laAvs  of  hosjiitality,  subjected  to  no  force, 
entitled  to  have  their  innnecliate  wants  and  necessities  relieved,  and  to 
pursue  their  voyage  without  molestation.' 

"  In  this  case,  that  of  the  Creole,  Mr.  AVheaton,  in  the  Revue  Fran- 
ca,se  et  Etrangere  (IX.  845),  and  Mr.  Legare  (4  Op.  At.  Gen.  98), 
both  eminent  i)ublicists,  gave  opinions  that  a  vessel  carried  by  sti;ess 
of  weather  or  forced  into  a  foreign  port  is  not  subject  to  the  law  of 
such  ])ort :  and  this  was  sustained  by  Mr.  Bates,  the  umpire  of  the 
commission  to  whom  the  claim  was  referred  (Rep.  Com.  of  1853,  244, 
245)  : 

•• '  The  nnmicipal  law  of  England  [so  he  said]  cannot  authorize  a 
magistrate  to  violate  tlu>  law  of  nations  by  invading  with  an  armed 
force  the  vessel  of  a  friendly  nation  that  has  connnitted  no  offense, 
and  forcibly  dissolving  the  relations  which,  by  the  laws  of  his  country, 
the  captain  is  bound  to  preserve  and  enforce  on  board.  These  rights, 
sanctioned  by  the  law  of  nations,  viz,  the  right  to  navigate  the  ocean 
and  to  seek  shelter  in  case  of  distress  or  other  unavoidable  circum- 


§  167.]  THE    NORTHEASTERN    FISHERIES.  857 

stances,  and  to  retain  over  the  ship,  her  cargo,  and  passengers,  the  law 
of  her  country,  must  be  respected  by  all  nations,  for  no  independent 
nation  Avould  submit  to  their  violation.' 

''  It  is  proper  to  state  that  Lord  Ashburton,  who  conducted  the  con- 
troversy in  its  diplomatic  stage  on  the  British  side,  did  not  deny  as  a 
general  rule  the  propositions  of  Mr.  Webster.  He  merely  questioned 
the  applicability  of  the  rule  in  the  case  of  the  Creole.  Nor  has  the 
principle  ever  been  doubted  by  either  Her  Majesty's  Government  or 
the  Government  of  the  United  States :  while,  in  cases  of  vessels  driven 
by  storm  on  inhospitable  coasts,  both  Governments  have  asserted  it, 
sometimes  by  extreme  measures  of  redress,  to  secure  indemnity  for 
vessels  suffering  under  such  circumstances  from  port  exactions,  or 
from  injuries  inflicted  from  the  shore. 

'•  It  would  be  hard  to  conceive  of  anything  more  in  conflict  with  the 
humane  policy  of  Great  Britain  in  this  respect,  as  well  as  with  the  law 
of  nations,  than  was  the  conduct  of  Captain  Quigley  toward  the 
vessel  in  question  on  the  morning  of  October  8th. 

'•  In  such  coasts,  at  early  dawn,  after  a  stormy  night,  it  is  not 
unusual  for  boats,  on  errands  of  relief,  to  visit  vessels  which  have  been 
struggling  with  storm  during  the  night.  But  in  no  such  errand  of 
mercy  was  Captain  Quigley  engaged.  The  Marion  Grimes^  having 
found  shelter  during  the  night's  storm,  was  about  to  depart  on  her 
voyage,  losing  no  time  while  lier  bait  was  fresh  and  her  ice  lasted, 
when  she  was  boarded  by  an  armed  crew,  forced  to  go  7  miles  out  of 
her  way  to  the  port,  and  was  there  under  pressure  of  Captain  Quigley, 
against  the  opinion  originally  expressed  of  the  collector,  subjected  to 
a  fine  of  $400  with  costs,  and  detained  there,  as  I  shall  notice  here- 
after, until  her  voyage  was  substantially  broken  up.  I  am  confident 
Her  Majesty's  Government  will  concur  with  me  in  the  opinion  that,  as 
a  question  of  international  law.  aside  from  treaty  and  other  rights, 
the  arrest  and  detention  under  the  circumstances  of  Captain  Landry 
and  of  his  vessel  were  in  violation  of  the  law  of  nations  as  well  as  the 
law  of  humanity,  and  that  on  this  ground  alone  the  fine  and  the  costs 
should  be  refunded  and  tlie  ])arties  suffering  be  indenniified  for  their 
losses  thereby  incurred. 

••  It  is  not  irrelevant,  on  such  an  issue  as  the  present,  to  inquire  into 
tlie  official  position  of  Cajjtain  Quigley,  *  of  the  Canadian  cruiser  Ter- 
ror.' He  was.  as  the  term  '  Canadian  cruiser  '  used  by  him  enables  us 
to  conclude,  not  an  officer  in  Her  Majesty's  distinctive  service.  He 
was  not  the  connnander  of  a  revenue  cutter,  for  the  head  of  the  "cus- 
toms service  disavowed  him.  Yet  he  was  arresting  and  boarding,  in 
defiance  of  law.  a  vessel  there  seeking  shelter,  over-influencing  the 
collector  of  the  port  into  the  imposition  of  a  fine,  hauling  down  with 
Ids  own  hand  the  flag  of  the  United  States,  which  was  displayed  over 


858  NATIOXAL    JURISDICTION:    TERRITORIAL    LIMITS.  [§  l^*^- 

the  vessel,  and  enforcing  arbitrarily  an  additional  period  of  detention 
after  the  deposit  had  been  made,  simply  because  the  captain  of  the 
vessel  refused  to  obey  him  by  executing  an  order  insulting  to  the  flag 
which  the  vessel  bore.  If  armed  cruisers  are  employed  in  seizing, 
harassing,  and  humiliating  storm-bound  vessels  of  the  United  States 
on  Canadian  coasts,  breaking  up  their  voyages  and  mulcting  them 
with  fines  and  costs,  it  is  important  for  reasons  presently  to  be  speci- 
fied that  this  Government  should  be  advised  of  the  fact. 

••  From  Her  Majesty's  Government  redress  is  asked.  And  that 
redress,  as  I  shall  have  occasion  to  say  hereafter,  is  not  merely  the 
indemnification  of  the  parties  suffering  by  Captain  Quigley's  actions, 
but  his  withdrawal  from  the  waters  where  the  outrages  I  represent 
to  you  have  been  committed. 

''  I  have  already  said  that  the  claims  thus  presented  could  be  abun- 
dantly sustained  by  the  law  of  nations,  aside  from  treaty  and  other 
rights.  But  I  am  not  willing  to  rest  the  case  on  the  law  of  nations. 
It  is  essential  that  the  issue  between  the  United  States  fishing  ves- 
sels and  the  "  cruiser  Terror  "  should  be  examined  in  all  its  bearings, 
and  settled  in  regard  not  merely  to  the  general  law  of  nations,  but  to 
the  particular  rights  of  the  parties  aggrieved. 

••  It  is  a  fact  that  the  fishing  vessel  Marion  Ginmes  had  as  much 
right  under  the  special  relations  of  Great  Britain  and  the  United 
States  to  enter  the  harbor  of  Shelburne  as  had  the  Canadian  cruiser. 
The  fact  that  the  Grimes  was  liable  to  penalties  for  the  abuse  of 
such  right  of  entrance  does  not  disprove  its  existence.  Captain  Quig- 
ley  is  certainly  liable  to  penalties  for  his  misconduct  on  the  occasion 
referred  to.  Captain  Landry  was  not  guilty  of  misconduct  in  enter- 
ing and  seeking  to  leave  that  harbor,  and  had  abused  no  priv^ilege. 
But  whether  liable  or  no  for  subsequent  abuse  of  the  rights,  I  main- 
tain that  the  right  of  free  entrance  into  that  port,  to  obtain  shelter, 
and  whatever  is  incident  thereto,  belonged  as  much  to  the  American 
fishing  vessel  as  to  the  Canadian  cruiser. 

"  The  basis  of  this  right  is  thus  declared  b}'  an  eminent  jurist  and 
statesman.  Mr.  R.  R.  Livingston,  the  first  Secretary  of  State  ap- 
pointed by  the  Continental  Congress,  in  instructions  issued  on  Jan- 
uary 7,  178-2,  to  Dr.  Franklin,  then  at  Paris,  intrusted  by  the  United 
States  Avith  the  negotiation  of  articles  of  peace  with  Great  Britain: 

"  *  The  arguments  on  Avhich  the  people  of  America  found  their 
claim  to  fish  on  the  banks  of  Newfoundland  arise,  first,  from  their 
ha\'tng  once  formed  a  part  of  the  British  Empire,  in  which  state  they 
always  enjoyed  as  fully  as  the  people  of  Britain  themselves  the  right 
of  fishing  on  those  banks.  They  have  shared  in  all  the  wars  for  the 
extension  of  that  right,  and  Britain  could  with  no  more  justice  have 
excluded  them  from  the  enjoyment  of  it  (even  supposing  that  one 


§  167.]         .  THE    NORTHEASTERN    FISHERIES.  859 

nation  could  possess  it  to  the  exclusion  of  another)  while  they  formed 
a  part  of  that  Empire  than  they  could  exclude  the  people  of  London 
or  Bristol.  If  so,  the  only  inquiry  is,  how  have  we  lost  that  right? 
If  we  were  tenants  in  common  with  Great  Britain  while  united  with 
her,  we  still  continue  so,  unless  by  our  own  act  we  have  relinquished 
our  title.  Had  we  parted  with  mutual  consent,  we  should  doubtless 
have  made  partition  of  our  common  rights  by  treaty.  But  the  op- 
pressions of  Great  Britain  forced  us  to  a  separation  (which  must  be 
admitted,  or  we  have  no  right  to  be  independent)  ;  and  it  can  not 
certainly  be  contended  that  those  oppressions  abridged  our  rights  or 
gave  new  ones  to  Britain.  Our  rights,  then,  are  not  invalidated 
by  this  separation,  more  particularly  as  we  have  kept  up  our  claim 
from  the  commencement  of  the  war,  and  assigned  the  attempt  of 
Great  Britain  to  exclude  us  from  the  fisheries,  as  one  of  the  causes 
of  our  recurring  to  arms.' 

"As  I  had  occasion  to  show  in  my  note  to  the  British  minister  in  the 
case  of  the  Everett  Steele,  of  which  a  copy  is  hereto  annexed,  this 
'  tenancy  in  common.'  held  by  citizens  of  the  United  States  in  the 
fisheries,  they  were  to  '  continue  to  enjoy  '  under  the  preliminary 
articles  of  1782,  as  well  as  under  the  treaty  of  peace  of  1783;  and  this 
right,  as  a  right  of  entrance  in  those  waters,  was  reserved  to  them, 
though  with  certain  limitations  in  its  use,  by  the  treaty  of  1818.  I 
might  here  content  myself  with  noticing  that  the  treaty  of  1818, 
herein  reciting  a  principle  of  the  law  of  nations  as  well  as  ratifying 
a  right  previously  possessed  by  fishermen  of  the  United  States, 
expressly  recognizes  the  right  of  these  fishermen  to  enter  the  '  bays 
or  harbors '  of  Her  Majesty's  Canadian  dominions,  '  for  the  purpose 
of  shelter  and  of  repairing  damages  therein.'  The  extent  of  other 
recognitions  of  rights  in  the  same  clause  need  not  here  be  discussed. 
At  present  it  is  sufficient  to  say  that  the  placing  an  armed  cruiser  at 
the  mouth  of  a  harbor  in  which  the  United  States  fishing  vessels  are 
accustomed  and  are  entitled  to  seek  shelter  on  their  voyages,  such 
cruiser  being  authorized  to  arrest  and  board  our  fishing  vessels  seek- 
ing such  shelter,  is  an  infraction  not  merely  of  the  law  of  nations,  but 
of  a  solemn  treaty  stipulation.  That,  so  far  as  concerns  the  fisher- 
men so  affected,  its  consequences  are  far-reaching  and  destructive,  it 
is  not  necessary  here  to  argue.  Fishing  vessels  only  carry  provisions 
enough  for  each  particular  voyage.  If  they  are  detained  several  days 
on  their  way  to  the  fishing  banks  the  venture  is  broken  up.  The 
arrest  and  detention  of  one  or  two  operates  upon  all.  They  cannot 
as  a  class,  with  their  limited  capital  and  resources,  afford  to  run 
risks  so  ruinous.  Hence,  rather  than  subject  themselves  to  even  the 
chances  of  suffering  the  wrongs  inflicted  by  Captain  Quigley,  '  of  the 
Canadian  cruiser  Teii-or!!  on  some  of  their  associates,  they  might  pre- 


860  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  167. 

fer  to  abandon  their  ju^t  claim  to  the  sheher  consecrated  to  them  alike 
l)v  humanity,  ancient  title,  the  la\Y  of  nations,  and  by  treaty,  and 
face  the  grravest  peril  and  the  wildest  seas  in  order  to  reach  their 
fishinof  grounds.  You  will  therefore  represent  to  Her  Majesty's 
(n)vernment  that  the  placinof  Captain  Quigley  in  the  harbor  of  Shel- 
burne  to  inflict  wrong^s  and  humiliation  on  United  States  fishermen 
there  seeking  shelter  is.  in  connection  with  other  methods  of  annoy- 
ance and  injury,  expelling  United  States  fishermen  from  waters, 
access  to  which,  of  great  importance  in  the  pursuit  of  their  trade,  is 
pledged  to  them  by  Great  Britain,  not  merely  as  an  ancient  right,  but 
as  part  of  a  system  of  international  settlement. 

"  It  is  impossible  to  consider  such  a  state  of  things  without  grave 
anxiety.  You  can  scarcely  represent  this  too  strongly  to  Her 
Majesty's  Government. 

"  It  must  l)e  remembered,  in  considering  this  system,  so  imperiled, 
that  the  preliminaries  to  the  article  of  1782,  afterwards  adopted  as 
the  treaty  of  1783,  Avere  negotiated  at  Paris  by  Dr.  Franklin,  repre- 
senting the  United  States,  and  ^Ir.  Richard  Oswald,  representing 
Lord  Shelburne,  then  colonial  secretary,  and  afterwards,  when  the 
treaty  was  finally  agreed  on.  prime  minister.  It  must  be  remem- 
bered, also,  that  Lord  Shelburne.  while  maintaining  the  rights  of  the 
colonies  when  assailed  by  (ireat  Britain,  was  nevertheless  unwilling 
that  their  independence  should  l>e  recognized  prior  to  the  treaty  of 
peace,  as  if  it  were  a  concession  wrung  from  (ireat  Britain  by  the 
exigencies  of  war.  His  position  was  that  this  recognition  should 
form  part  of  a  treaty  of  partition,  by  which,  as  is  stated  by  the  court 
in  Sutton  r.  Sutton  ( 1  Rus.  &  M.  ()75).  already  noticed  by  me,  the  two 
great  sections  of  the  British  Empire  agreed  to  separate,  in  their 
articles  of  sej^aration  recognizing  to  each  other's  citizens  or  subjects 
wrtain  territorial  rights.  Thus  the  contimiance  of  the  rights  of  the 
[  nited  States  in  the  fisheries  was  recognized  and  guaranteed;  and 
it  was  also  declared  that  the  navigation  of  the  Mississippi,  whose 
soMi-ccs  were,  in  the  imi)erfect  condition  of  geographical  knowledge 
of  that  day,  >ui)posed  to  be  in  British  territory,  should  l)e  free  and 
open  to  British  subjects  and  to  citizens  of  the  United  States.  Both 
|)owers  also  agree<l  tiiat  there  should  be  no  further  prosecutions  or 
confiscations  Itased  on  the  war:  and  in  this  way  were  secured  the 
titles  t(»  ))roi)erty  held  in  one  country  by  persons  remaining  loyal  to 
the  other.  This  was  afterward-  |)ut  in  definite  shape  by  the  follow- 
ing article  (  Article  X.)  of  Jay's  treaty: 

•• '  It  is  agreed  that  Biitish  >ubjects  who  now  hold  lands  in  the  ter- 
ritoiic>  of  the  United  Stato.  and  American  citizens  who  now  hold 
hinds  in  the  dominion  of  His  Majesty,  shall  continue  to  hold  them 
according  to  the  nature  and  tenure  of  their  respective  estates  and 


§  167.]  THE    NORTHEASTERN    FISHERIES.  861 

titles  therein,  and  may  grant,  sell,  or  devise  the  same  to  whom  they 
please  in  like  manner  as  if  they  were  natives;  and  that  neither  they 
nor  their  heirs  or  assigns  shall,  so  far  as  may  respect  the  said  lands 
and  the  legal  remedies  incident  thereto,  be  regarded  as  aliens.' 

"  It  was  this  article  which  the  court  in  Sutton  v.  Sutton,  above 
referred  to.  held  to  be  one  of  the  incidents  of  the  '  separation  '  of 
1783,  of  perpetual  obligation,  unless  rescinded  by  the  parties,  and 
hence  not  abrogated  by  the  war  of  1812. 

"  It  is  not,  however,  on  the  continuousness  of  the  reciprocities,  rec- 
ognized by  the  treaty  of  1788,  that  I  desire  now  to  dwell.  What  I 
am  anxious  you  should  now  impress  upon  the  British  (xovernment  is 
the  fact  that,  as  the  fishery  clause  in  this  treaty,  a  clause  continued 
in  the  treaty  of  1818,  was  a  part  of  a  system  of  reciprocal  recogni- 
tions which  are  interdependent,  the  abrogation  of  this  clause,  not  by 
consent,  but  by  acts  of  violence  and  of  insult,  such  as  those  of  the 
Canadian  cruiser  Terror,  would  be  fraught  with  consequences  which 
I  am  sure  could  not  be  contemplated  by  the  Governments  of  the 
United  States  and  Great  Britain  without  immediate  action  being 
taken  to  avert  them.  To  the  extent  of  the  system  thus  assailed  I 
now^  direct  attention. 

''  When  Lord  Shelburne  and  Dr.  Franklin  negotiated  the  treaty 
of  peace,  the  area  on  which  its  recognitions  were  to  operate  was 
limited.  They  covered,  on  the  one  hand,  the  fisheries;  but  the  map 
of  Canada  in  those  days,  as  studied  by  Lord  Shelburne,  gives  but  a 
very  imperfect  idea  of  the  territory  near  which  the  fisheries  lay. 
Halifax  was  the  only  port  of  entry  on  the  coast;  the  New  England 
States  were  there  and  the  other  nine  provinces,  but  no  organized 
governments  to  the  west  of  them.  It  was  on  this  area  only,  as  well 
as  on  Great  Britain,  that  the  recognitions  and  guarantees  of  the 
treaty  were  at  first  to  operate.  Yet  comparatively  small  as  this  field 
may  now  seem,  it  was  to  the  preservation  over  it  of  certain  reciprocal 
rights  that  the  attention  of  the  negotiators  was  mainly  given.  And 
the  chief  of  these  rights  were:  (1)  the  fisheries,  a  common  enjoyment 
in  which  by  both  parties  took  nothing  from  the  property  of  either; 
and  (2)  the  preservation  to  the  citizens  or  subjects  of  each  country 
of  title  to  property  in  the  other. 

"  Since  Lord  Shelburne's  premiership  this  system  of  reciprocity 
and  mutual  convenience  has  progressed  under  the  treaties  of  1842 
and  1840,  so  as  to  give  to  Her  Majesty's  subjects,  as  well  as  to  citizens 
of  the  United  States,  the  free  use  of  the  river  Detroit  on  both  sides 
of  the  island  Bois  Blanc,  and  between  that  island  and  the  American 
and  Canadian  shores,  and  all  the  several  channels  and  passages 
between  the  various  islands  lying  near  the  junction  of  the  river  St. 
Clair  with  the  lake  of  that  name.     By  the  treaty  of  1846  the  prin- 


8<i2  NATIONAL  jurisdiction:   territorial  limits.       [§167. 

ciple  of  coinnioii  border  privileges  was  extended  to  the  Pacific  Ocean. 
The  still  existing  connnercial  articles  of  the  treaty  of  1871  further 
amplified  those  nuitual  benefits  by  embracing  the  use  of  the  inland 
waterways  of  either  country,  and  defining  enlarged  privileges  of 
bonded  transit  by  land  and  water  through  the  United  States  for  the 
benefit  of  the  inhabitants  of  the  Dominion.  And  not  only  by  treaties 
has  the  development  of  Her  Majesty's  American  dominion,  especially 
to  the  westward,  been  aided  by  the  United  States,  but  the  vigorous 
c()ntem})oi"aneous  growth  under  the  enterprise  and  energy  of  citizens 
of  the  Northwestern  States  and  Territories  of  the  United  States  has 
been  productive  of  almost  equal  advantages  to  the  adjacent  posses- 
sions of  the  British  Crown,  and  the  favoring  legislation  by  Congress 
has  created  benefits  in  the  way  of  railway  facilities  which  under  the 
sanction  of  State  laws  have  been  and  are  freely  and  beneficially 
enjoyed  by  the  inhabitants  of  the  Dominion  and  their  Government, 

'•  Under  this  system  of  energetic  and  cooperative  development  the 
coast  of  the  Pacific  has  been  reached  by  the  transcontinental  lines  of 
railway  Avithin  the  territorial  limits  of  the  respective  countries,  and, 
as  I  have  stated,  the  United  States  being  the  pioneers  in  this  remarka- 
l)le  |)r()gress.  have  been  happily  able  to  anticipate  and  incidentally  to 
promote  the  subsequent  success  of  their  neighbors  in  British  America. 

"  It  will  he  scarcely  necessary  for  you  to  say  to  Lord  Iddesleigh 
that  the  I'nited  States,  in  thus  aiding  in  the  promotion  of  the  pros- 
perity, and  in  establishing  the  security  of  Her  Majesty's  Canadian 
dominions,  claims  no  particular  credit.  It  was  prompted,  in  thus 
oiKMiing  its  territory  to  Canadian  use,  and  incidentally  for  Canadian 
growth,  in  lai'ge  measure  by  the  consciousness  that  such  good  offices 
are  part  of  a  system  of  nuitual  convenience  and  advantage  growing  up 
under  the  treaties  of  peace  and  assisted  by  the  natural  forces  of 
friendly  contiguity.  Therefore  it  is  that  we  witness  with  surprise 
and  painful  apprehension  the  United  States  fishermen  hampered  in 
their  enjoyment  of  their  undoubted  rights  in  the  fisheries. 

••  The  hosj)italities  of  Canadian  coasts  and  harbors,  which  are  ours 
by  ancient  right,  and  which  these  treaties  confirm,  cost  Canada  noth- 
ing and  are  productive  of  advantage  to  her  people.  Yet,  in  defiance 
<;f  the  most  solenm  oI)ligations,  in  utter  disregard  of  the  facilities  and 
assistances  granted  by  the  United  States,  and  in  a  way  especially  irri- 
tating, a  delilM'rate  i)lan  of  annoyances  and  aggressions  has  been 
instituted  and  plainly  exhibited  during  the  last  fishing  season — a  plan 
calculated  to  drive  these  fishermen  from  shores  where,  without  injury 
to  others,  they  prosecute' their  own  legitimate  and  useful  industry. 

"  It  is  impossible  not  to  see  that  if  the  unfriendly  and  unjust  sys- 
tem, of  which  the  cases  now  presented  are  part,  is  sustained  by  Her 
Majesty's  Government,  serious  results  will  almost  necessarily  ensue, 


§  167.]  THE    NORTHEASTERN    FISHERIES.  863 

great  as  is  the  desire  of  this  Government  to  maintain  the  relations  of 
good  neighborhood.  Unless  Her  Majesty's  Government  shall  effectu- 
ally check  these  aggressions  a  general  conviction  on  the  part  of  the 
people  of  the  United  States  may  naturally  be  apprehended  that,  as 
treaty  stipulations  in  behalf  of  our  fishermen,  based  on  their  ancient 
rights,  cease  to  be  respected,  the  maintenance  of  the  comprehensive 
system  of  mutual  commercial  accommodation  between  Canada  and 
the  United  States  could  not  reasonably  be  expected. 

"  In  contemplation  of  so  unhappy  and  undesirable  a  condition  of 
affairs  I  express  the  earnest  hope  that  Her  Majesty's  Government  will 
take  innnediate  measures  to  avert  its  possibility. 

'*  With  no  other  purpose  than  the  preservation  of  peace  and  good 
will  and  the  promotion  of  international  amity,  I  ask  you  to  represent 
to  the  statesmen  charged  with  the  administration  of  Her  Majesty's 
Government  the  necessity  of  putting  an  end  to  the  action  of  Canadian 
officials  in  excluding  American  fishermen  from  the  enjoyment  of  their 
treaty  rights  in  the  harbors  and  waters  of  the  maritime  provinces  of 
British  Xorth  America. 

'•  The  action  of  Captain  Quigley  in  hauling  down  the  flag  of  the 
United  States  from  the  Marion  Grimes  has  naturally  aroused  much 
resentment  in  this  country,  and  has  been  made  the  subject  of  some- 
what excited  popular  comment;  and  it  is  wholly  impossible  to  account 
for  so  extraordinary  and  unwarranted  an  exhibition  of  hostility  and 
disrespect  by  that  official.  I  must  suppose  that  only  his  want  of 
knowledge  of  what  is  due  to  international  comity  and  propriety  and 
overheated  zeal  as  an  officer  of  police  could  have  permitted  such 
action :  but  I  am  confident  that,  upon  the  facts  being  made  known  by 
you  to  Her  Majesty's  Government,  it  will  at  once  be  disavowed,  a 
fitting  rebuke  be  administered,  and  the  possibility  of  a  repetition  of 
Captain  Quigley *s  offense  be  prevented. 

'"  It  seems  hardly  necessary  to  say  that  it  is  not  until  after  con- 
denmation  by  a  prize  court  that  the  national  flag  of  a  vessel  seized  as  a 
prize  of  war  is  hauled  down  by  her  captor.  Under  the  fourteenth 
section  of  the  twentieth  chapter  of  the  Navy  Regulations  of  the 
United  States  the  rule  in  such  cases  is  laid  down  as  follows: 

"  'A  neutral  vessel,  seized,  is  to  wear  the  flag  of  her  own  country 
until  she  is  adjudged  to  be  a  lawful  prize  by  a  competent  court.' 

"  But,  a  fortiori^  is  this  principle  to  apply  in  cases  of  customs  seiz- 
ures, wh(>re  fines  only  are  imposed  and  where  no  belligerency  what- 
ever exists.  In  the  port  of  Xew  York,  and  other  of  the  countless 
harbors  of  the  United  States,  are  merchant  vessels  to-day  flying  the 
British  flag  which  from  time  to  time  are  liable  to  penalties  for  viola- 
tions of  customs  laws  and  regulations.  But  I  hav^e  yet  to  learn  that 
any  official,  assuming,  directly  or  indirectly,  to  represent  the  Govern- 


S(^4  NATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  167. 

luent  of  tlu'  United  States,  would  under  such  circumstances  order 
down  or  for('il)ly  haul  down  the  British  flag  from  a  vessel  charged 
with  such  irregularity:  and  I  now  assert  that  if  such  act  were  com- 
mitted, this  (xovermnent,  after  being  informed  of  it,  would  not  wait 
for  a  complaint  from  Great  Britain,  but  would  at  once  promptly 
reprimand  the  parties  concerned  in  sucii  misconduct  and  would  cause 
proper  expression  of  regret  to  be  made. 

•'A  scrupulous  regard  for  international  respect  and  courtesy  should 
mark  the  intercourse  of  the  officials  of  these  two  gi'eat  and  friendly 
nations,  and  anything  savoring  of  the  contrary  should  be  unhesitat- 
ingly and  emphatically  rebuked.  I  cannot  doubt  that  these  views 
will  find  ready  acquiescence  from  those  charged  with  the  administra- 
tion of  the  Government  of  (ireat  Britain. 

"  You  are  at  liberty  to  make  Lord  Iddesleigh  acquainted  with  the 
contents  of  this  letter,  and.  if  desired,  leave  with  him  a  copy." 

Mv.  Bayard.  Sec.  of  State,  to  Mr.  Phelps,  min.  to  England.  No.  4.")2.  Nov. 
<;.  tS8<;.  F(»r.  Rol.   18.SG.  •.UV2. 

December  7,  188().  the  British  minister  at  Washington,  by  direction 
of  the  Earl  of  Iddesleigh.  conununicated  to  the  Department  of  State 
a  dispatch  from  the  acting  Governor-General  of  Canada,  "  expressing 
the  regret  of  the  Dominion  government  at  the  action  of  the  captain 
of  the  Canadian  cutter  Terror  in  lowering  the  United  States  flag 
from  the  United  States  fishing  schooner  Marion  Gritnes,^'  while  she 
was  under  detention  at  Shelburne. 

The  dispatch  of  the  Acting  Governor-General  inclosed  a  copy  of  an 
approved  minute  of  the  privy  council  of  Canada,  reading  as  follows: 

"On  a  report,  dated  the  14th  ()ctol)er.  from  the  Hon.  Mackenzie 
Bowell,  for  the  minister  of  marine  and  fisheries,  stating  that  on 
Monday,  the  11th  October  instant,  the  United  States  fishing  schooner 
Marion  Grimes,  of  (Gloucester.  Mass.,  Avas  under  detention  at  Shel- 
burne. Nova  Scotia,  by  the  collector  of  customs  at  that  port  for  an 
infraction  of  the  customs  regulations;  that  while  so  detained,  and 
under  the  surveillance  of  the  Canadian  government  cutter  Terror^ 
the  caj^tain  of  the  Mr/rion  (rvinies  hoisted  the  United  States  flag. 

••  The  minister  further  states  that  it  appears  that  Capain  Quigley. 
of  the  Terror,  considered  such  act  as  an  intimation  that  there  was 
an  intention  to  rescue  the  vessel,  and  requested  Captain  Landry  to 
take  the  flag  down.  This  request  was  complied  with.  An  hour 
later,  however,  the  flag  was  again  hoisted,  and  on  Captain  Landry 
being  asked  if  his  vessel  had  been  released,  and  replying  that  she 
had  not.  Captain  Quigley  again  re(iuested  that  the  flag  be  lowered. 
This  was  refused,  when  Captain  Quigley  himself  lowered  the  flag, 
acting  under  the  belief  that  while  the  Marion  Grimes  was  in  posses- 


§  167.]  THE    NORTHEASTERN    FISHERIES.  865 

sion  of  the  customs  authorities,  and  until  her  case  had  been  adjudi- 
cated upon,  the  vessel  had  no  right  to  fly  the  United  States  flag. 

"  The  minister  regrets  that  he  should  have  acted  Avith  undue  zeal, 
although  Captain  Quigley  may  have  been  technically  within  his 
right  while  the  vessel  was  in  the  custody  of  the  law. 

"  The  committee  advise  that  your  excellency  be  moved  to  forward 
a  copy  of  this  minute,  if  approved,  to  the  right  honorable  the  sec- 
retary of  state  for  the  colonies,  and  to  Her  Majesty's  minister  at 
Washington,  expressing  the  regret  of  the  Canadian  government  at 
the  occurrence." 

A  copy  of  the  British  minister's  note  and  of  the  accompanying 
papers  were  sent  to  the  legation  of  the  United  States  at  London, 
with  an  instruction  saying:  "As  this  occurrence  had  been  made  the 
subject  of  an  instruction  to  you  b}'  me,  on  the  6th  ultimo,  whereby 
you  were  requested  to  bring  the  incident  to  the  attention  of  Her  Maj- 
esty's Government,  I  hasten  to  inform  you  of  the  voluntary  action 
of  the  Canadian  government  and  of  their  expression  of  regret  for  the 
action  of  the  officer  referred  to." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Phelps,  min.  to  England,  Dec.  13,  1886, 
For.  Rel.  1887,  451. 

The  note  of  the  British  minister  of  December  7,  1886,  is  printed  in  For- 
eign Relations,  1886,  491. 

By  an  act  of  Congress  approved  March  3,  1887,  it  was  provided 

that  whenever  the  President  should  be  satisfied  that 
Eetaliatory    act,.  •  n  i  •  i  n  ^  xi 

1887  American  nshmg  vessels  or  nshermen  Avere  or  then 

lately  had  been  "  denied  or  abridged  "  in  the  waters 
of. the  British  dominions  of  Xorth  America  in  the  enjoyment  of  any 
rights  secured  to  them  by  treaty  or  law,  or  unjustly  vexed  or  harassed 
in  the  enjoyment  of  such  rights,  or  subjected  in  respect  thereof  to  un- 
reasonable restrictions,  regulations,  or  requirements,  or  otherwise  un- 
justly vexed  or  harassed:  or  that  any  such  vessels  or  fishermen,  hav- 
ing a  permit  under  the  laws  of  the  United  States  to  touch  and  trade, 
were  or  then  lately  had  been  denied  the  privilege  of  entering  in  the 
same  manner  as  trading  vessels  of  the  most  favored  nation,  or  were 
unjustly  vexed  or  harassed  in  the  matter,  or  prevented  from  purchas- 
ing such  supplies  as  might  be  lawfidly  sold  to  trading  vessels  of  the 
most  favored  nation ;  or  that  any  other  United  States  vessels,  their 
masters  or  crews,  were  or  then  latel}'  had  been  denied  any  of  the 
privileges  accorded  in  such  dominions  to  vessels,  masters,  or  crews  of 
the  most  favored  nation,  or  Avere  unjustly  vexed  or  harassed  in 
respect  thereof,  it  should  in  any  or  all  of  such  cases  be  the  duty  of 
the  President,  in  his  discretion,  by  proclamation  to  deny  to  vessels, 

H.  Doc.  551 55 


806  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  168. 

their  masters  and  crews,  of  the  British  dominions  of  North  America 
any  entrance  into  the  waters  of  the  United  States  (with  such  excep- 
tions in  reg^ard  to  distress  or  need  of  supplies  as  should  seem  proper), 
and  also  to  deny  entry  of  fresh  fish  or  salt  fish  or  any  other  product 
of  the  dominions  in  question  or  other  o:oods  coming  from  such  do- 
minions into  the  United  States.  The  President  was  authorized,  in 
his  discretion,  to  apply  his  proclamation  to  any  or  all  of  the  subjects 
specified,  and  to  revoke,  qualify,  or  renew  it  from  time  to  time  as  he 
might  deem  necessary  to  the  full  and  just  execution  of  the  purposes 
of  the  act.  The  penalty  of  forfeiture  was  prescribed  for  any  en- 
trance of  vessels  and  goods  contrary  to  proclamation,  while  every 
person  violating  the  provisions  of  the  act  or  of  any  proclamation 
under  it  was  to  be  deemed  guilty  of  a  misdemeanor,  punishable  with 
a  fine  not  exceeding  $1,000  or  by  imprisonment  of  noit  more  than  two 
years,  or  by  both,  in  the  discretion  of  the  court.* 

For  lists  of  vessels  seized,  see  S.  Ex.  Doc.  5~).  49  Cong.  2  sess. ;  S.  Mis. 
Doe.  .14.  49  Cong.  2  sess.;  IT.  Report  4087,  49  Cong.  2  sess.  27-34; 
Confid.  S.  Rep.  3,  50  Cong.  I  sess.  4.">-(j0. 
See  report  of  Mr.  Belmont.  Committee  on  Foreign  Affairs,  Jan.  18,  1887. 
H.  Report  3<)48,  49  Cong.  2  sess. ;  res.  of  Mr.  Gorman,  Jan.  18,  1887, 
S.  Mis.  Doc.  33,  49  Cong.  2  sess. ;  report  of  Mr.  Edmnnds.  Committee 
on  Foreign  Relations,  Jan.  19.  1887.  S.  Rep.  1083,  49  Cong.  2  sess. 
part  1.  pp.  xvi.  280;  part  2,  pp.  9.3.  with  maps;  report  of  Mr.  Belmont, 
Com.  on  For.  Aff.,  Feb.  10,  1887,  II.  Report  4087,  49  Cong.  2  sess.,  re- 
port of  Messrs.  Ednunuls,  Frye,  and  Morgan,  Com.  on  For.  Rel.,  Feb., 
28,  1887,  S.  Rep.  1981,  49  Cong.  2  sess. 
See,  also,  message  of  Fel>.  8.  1887.  II.  Ex.  Doc.  153,  49  Cong.  2  sess.;  S. 
Ex.  Doc.  73,  50  Cong.  1  sess. ;  Consular  Reports,  No.  77,  April,  1887. 

G.  Unr.\tified  Treaty,  1888. 
§  1G8. 

The  President,  in  the  exercise  of  his  discretion  under  the  foregoing 
act,  continued  the  negotiations  for  an  adjustment.  They  resulted  in 
the  meeting  of  representatives  of  the  United  States  and  Oreat  Brit- 
ain in  confei-ence  at  Washington,  November  22,  1887.'^  On  February 
15,  1888,  a  treaty  was  signed,  and  on  the  same  day  communications 
were  exchanged  which  were  designed  to  provide,  for  a  period  not 
exceeding  two  years,  a  modus  vicendt  pending  the  ratification  of  the 
treaty.'- 

By  the  treaty  ])r()vision  was  made  for  the  delimitation  of  what  were 
to  be  considered  as  exclusively  British  waters  under  the  convention  of 

"24  Stat.  475;  For.  Rel.  1887,  400. 

''See.  i)arti(niarly.  S.  Ex.  Doc.  113.  50  Cong.  1  sess.  50-05,  112-119. 
'•  II.  Ex.  Doc.  434,  50  Cong.  1  sess.  9-20.     See,  also,  S.  Ex.  Doc,  127,  50  Cong. 
1  sess. 


§  168.]  THE    NORTHEASTERN    FISHERIES.  867 

October  20,  1818."  Tt  was  agreed  that  the  three  marine  miles  under 
that  convention  shoukl  be  measured  seaward  from  low-water  mark, 
and  that  at  bays,  creeks,  and  harbors  the  distance  should,  except  where 
it  was  otherwise  provided,  be  measured  from  a  straight  line  drawn 
across  the  part  nearest  the  entrance,  at  the  first  point  where  the  width 
did  not  exceed  ten  marine  miles.'*  Specific  stipulations,  however, 
were  made  as  to  the  line  in  the  Bale  des  Chaleurs,  Bay  of  Miramichi, 
Egmont  Bay,  St.  Ann's  Bay.  Fortune  Bay.  Sir  Charles  Hamilton 
Sound.  Barrington  Bay,  Chedabucto  and  St.  Peter's  bays,  Mira  Bay, 
Placentia  Bay.  and  St.  Mary's  Bay.'^ 

It  was  provided  that  United  States  fishing  vessels  entering  the  bays 
or  harbors  in  question  should  conform  to  harbor  regulations  conunon 
to  them  and  to  fishing  vessels  of  Canada  or  of  Newfoundland ;  that 
they  need  not  report,  enter,  or  clear  when  putting  into  such  bays  or 
harbors  for  shelter  or  repairing  damages,  nor  when  putting  in  out- 
side the  limits  of  established  ports  of  entry  for  the  purpose  of  pur- 
chasing wood  or  of  obtaining  water,  unless  they  remained  in  port 
more  than  twenty-four  hours,  exclusive  of  Sundays  or  legal  holidays, 
or  connuunicated  with  the  shore  therein;  that  they  should  not  be 
liable  in  such  bays  or  harbors  for  compulsory  pilotage,  nor,  when  put- 
ting in  for  the  purpose  of  shelter,  of  repairing  damages,  of  purchas- 
ing wood,  or  of  obtaining  water,  for  harbor  dues,  tonnage  dues,  buoy 
dues,  light  dues,  or  other  similar  dues:  '^  that  they  might,  when  enter- 
ing under  stress  of  weather  or  other  casualty,  unload,  reload,  trans- 
ship, or  sell,  subject  to  customs  laws  and  regulations,  all  fish  on 
board,  when  necessary  as  incidental  to  repairs,  and  might  replenish 
outfits,  provisions,  and  supplies  damaged  or  lost  by  disaster,  and,  in 
case  of  death  or  sickness,  enjoy  all  needful  facilities,  including  the 
shil)ping  of  crews;  that  licenses  to  purchase,  for  the  homeward  voyage, 
such  ])rovisi()ns  and  supplies  as  were  ordinarily  sold  to  trading  ves- 
sels should  be  granted  to  United  States  fishing  vessels  promptly  and 
without  charge;  that  such  vessels,  having  obtained  licenses  in  this 
manner,  should  "  also  be  accorded  upon  all  occasions  such  facilities 
for  the  purchase  of  casual  or  needful  provisions  and  supplies  as  are 
ordinarilv  granted  to  trading  vessels."  l)ut  that  such  j)rovisions 
or  supplies  should  not  be  obtained  by  barter,  nor  purchased  for  resale 
ir  traffic;''  and  that  fishing  vessels  of  Canada  and  Newfoundland 
should  have  on  the  Atlantic  coast  of  the  United  States  all  the  i)rivi- 
Icges  secured  by  the  treaty  to  American  fishing  vessels  in  Canada 
r.nd  Newfoundland.  The  Secretary  of  the  Treasury  was  to  make 
i-cgulations  for  the  c()nspicu()us  exhibition  l)y  every  United  States 
fishina'  vessel  of  an  official  number  on  each  bow.^ 


"Arts.  I.-VIII.  c  Art.  IV.  ^  Art.  XI. 

6  Art.  III.  d  Art.  X.  t  Art.  XIII. 


868  NATIONAL    JURISDICTION  :    TEREITORIAL    LIMITS,  [§  168. 

It  was  stipulated  that  the  penalties  for  "' iinlawfull}^  fishing"  in 
prohibited  waters  might  extend  to  forfeiture  of  the  vessel  and  cargo, 
and  that,  for  "  preparing  in  such  Avaters  to  unlawfully  fish  therein," 
the  penalty  should  be  fixed  by  the  court,  not  to  exceed  those  for 
unlawfully  fishing;  and  that  for  any  other  violation  of  the  fishery 
laws  the  penalty  should  be  fixed  by  the  court,  not  to  exceed  three 
dollars  a  ton  of  the  vessel  concerned.  Trial,  except  on  appeal,  was 
to  be  at  the  place  of  detention,  unless  the  judge  should,  on  the  request 
of  the  defence,  order  it  to  be  held  elsewhere.  There  were  to  be 
})roi)er  a})peals  available  to  the  defense  only;  and  judgments  of  for- 
feiture were  to  be  reviewed  by  the  governor-general  of  Canada  in 
council,  or  the  governor  in  council  of  Newfoundland,  before  being 
executed." 

Finally,  it  was  stipulated  that  Avhenever  the  United  States  should 
remove  the  duty  from  the  fishery  products  of  Canada  and  Newfound- 
land, the  like  products  of  fisheries  carried  on  by  fishermen  of  the  United 
States  should  be  admitted  free  of  duty  into  Canada  and  Newfound- 
land; and  that,  upon  such  removal  of  duties,  and  so  long  as  it  should 
last,  the  privilege  of  entering  Canadian  and  Newfoundland  ports, 
bays,  and  harbors  should  be  accorded  to  United  States  fishing  ves- 
sels by  annual  licenses,  free  of  charge,  for  the  purposes  of  (1)  the 
purchase  of  provisions,  bait,  ice,  seines,  lines,  and  all  other  supplies 
and  outfits;  (2)  transshipment  of  catch,  for  transport  by  any  means 
of  conveyance;  (3)  shipping  of  crews.  It  was  further  stipulated 
that  supplies  should  not  be  obtained  by  barter,  but  that  bait  might 
be  so  obtained ;  and  that  the  like  privileges  should  be  given  to  Cana- 
dian and  Newfoundland  fishing  vessels  on  the  Atlantic  coasts  of  the 
United  States.^ 

After  the  signature  of  the  treaty  the  British  plenipotentiaries  pre- 
sented the  following  paper : 

'•  The  treaty  having  been  signed,  the  British  pleni- 
potentiaries desire  to  state  that  they  liaA'e  been  considering  the  posi- 
tion which  will  be  created  by  the  immediate  commencement  of  the 
fishing  season  before  the  treaty  can  possibly  be  ratified  by  the  Senate 
of  the  United  States,  by  the  parliament  of  Canada,  and  the  legisla- 
ture of  Newfoundland. 

•'  In  the  absence  of  such  ratification  the  old  conditions,  which  have 
given  rise  to  so  nnich  friction  and  irritation,  might  be  revived,  and 
might  interfere  with  the  unprejudiced  consideration  of  the  treaty  b}' 
the  legislative  l)0(lies  concerned. 

'•  I'nder  these  circumstances,  and  with  the  further  object  of  afford- 
ing evidence  of  their  anxious  desire  to  promote  good  feeling  and  to 

oArt.  XIV.  6  Art.  XV. 


§  168.]  THE    NORTHEASTERN    FISHERIES.  869 

remove  all  possible  subjects  of  controversy,  the  British  plenipoten- 
tiaries are  ready  to  make  the  following  temporary  arrangement  for  a 
period  not  exceeding  two  years,  in  order  to  afford  a  '  modus  vivendi ' 
pending  the  ratification  of  the  treaty : 

"  1.  For  a  period  not  exceeding  two  years  from  the  present  date, 
the  privilege  of  entering  the  bays  and  harbors  of  the  Atlantic  coasts 
of  Canada  and  Xewfoundland  shall  be  granted  to  United  States  fish- 
ing vessels  by  annual  licenses  at  a  fee  of  $1.50  per  ton  for  the  follow- 
ing purposes : 

"  The  purchase  of  bait,  ice,  seines,  lines,  and  all  other  supplies  and 
outfits. 

"  Transshipment  of  catch  and  shipping  of  crews. 

''  2.  If  during  the  continuance  of  this  arrangement  the  United 
States  should  remove  the  duties  on  fish,  fish-oil,  whale  and  seal-oil 
(and  their  coverings,  packages,  etc.),  the  said  licenses  shall  be  issued 
free  of  charge. 

"  3.  United  States  fishing  vessels  entering  the  bays  and  harbors  of 
the  Atlantic  coasts  of  Canada  or  of  Xewfoundland  for  any  of  the  four 
purposes  mentioned  in  Article  I.  of  the  convention  of  October  20, 
1818,  and  not  remaining  therein  more  than  twenty-four  hours,  shall 
not  be  required  to  enter  or  clear  at  the  custom-house,  providing  that 
they  do  not  communicate  with  the  shore. 

"  4.  Forfeiture  to  be  exacted  only  for  the  offences  of  fishing  or  pre- 
paring to  fish  in  territorial  waters. 

"  5.  This  arrangement  to  take  effect  as  soon  as  the  necessary  meas- 
ures can  be  completed  by  the  colonial  authorities. 

"  J.  Chamberlain. 

"  L.  S.  Sackville  West, 

"  Charles  Tupper. 

"  Washington,  February  15^  ISSSy 

To  this  communication  the  American  plenipotentiaries  made  the 
following  reply : 

"  The  xVmerican  plenipotentiaries  having  received  the  communica- 
tion of  the  British  plenipotentiaries  of  this  date  conveying  their  plan 
for  the  administration  to  be  observed  by  the  governments  of  Canada 
and  Xewfoundland  in  respect  to  the  fisheries  during  the  period  which 
may  be  requisite  for  the  consideration  by  the  Senate  of  the  treaty 
this  da}'  signed,  and  the  enactment  of  the  legislation  by  the  respective 
governments  therein  proposed,  desire  to  express  their  satisfaction 
Avith  this  manifestation  of  an  intention  on  the  part  of  the  British 
plenipotentiaries,  by  the  means  referred  to,  to  maintain  the  relations 
of  good  neighborhood  between  the  British  possessions  in  Xorth 
America  and  the  United  States;  and  they  will  convey  the  communi- 
cation of  the  British  plenipotentiaries  to  the  President  of  the  United 


870  XATIOXAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  168. 

8tate^.  with  a  recomniondatioii  that  the  same  may  be  by  him  made 
known  to  the  Senate  for  its  information,  together  with  the  treaty, 
when  the  hitter  is  submitted  to  that  body  for  ratification. 

"T.  F.  Bayard. 

"  William  L.  Putnam. 

"  James  B.  Angell. 
'•  Washington,  February  lo,  1888.^'  " 

The   treaty   was  communicated  by  the   President  to  the   Senate 
Subsequent    his-    February   ^O,   1888.   with  a   message   recommending 
tory.  its  approval.''     ^lay  7.  1888,  a  report  was  made  from 

the  Committee  on  Foreign  Kelations  of  the  Senate  adverse  to  ratifi- 
f^ation.  A  minority  report  also  was  presented.''  The  treaty  was 
debated  in  open  session.  August  21.  1888.  the  resolution  that  the 
Senate  give  its  advice  and  consent  failed  by  a  vote  of  27  yeas  to  30 
nays.''  August  23.  1888.  President  Cleveland  sent  to  Congress  a 
message  in  which  he  stated  that,  as  the  Senate  had  rejected  the  treaty 
without  any  apparent  disposition  to  alter  or  amend  it.  and  with 
indications  of  the  opinion  that  no  negotiation  should  then  be  con- 
ducted touching  the  matter  at  issue,  he  turned  to  the  contemplation 
of  a  plan  of  retaliation  as  a  mode  which  still  remained  of  treating 
the  situation.  In  connection  with  the  question  of  the  fisheries,  he 
also  dealt  Avith  the  subject  of  discrimination  in  tolls  and  charges  in 
the  use  of  the  Canadian  canals  by  citizens  of  the  United  States, 
under  Article  XXVII.  of  the  treaty  of  AVashington.  He  recom- 
mended, as  measures  of  retaliation,  the  suspension  of  the  bonded 


a  For  the  form  of  the  license  subsequently  issued  by  the  Dominion  Govern- 
ment under  this  modus  rireiidi.  see  For.  Rel.  1888,  I.  808. 

Under  the  bait  act  of  1880  licenses  also  were  issued  by  the  Newfoundland 
government  to  foreign  fishing  vessels,  including  vessels  of  the  Dominion  of 
Canada.  Licenses  issued  liy  the  Dominion  under  the  modus  riretidi  were  not 
good  in  Newfoundland.  (Mr.  Blaine,  Sec.  of  State,  to  Mr.  Dawes,  May  7,  1890, 
177  MS.  Dom.  Let..  421.) 

As  to  the  i»roi>ose<l  reciprocity  convention  between  the  United  States  and 
Newfoundland,  known  as  the  "  Rlaine-Bond  convention,"  and  the  protest  of 
Canada  against  it.  .see  Canadian  House  of  Commons  papers  containing  the  mes- 
sage of  the  governor-general  of  .Tune  8.  18!>L  p.  So.  At  page  82  of  the  same 
document  may  Ite  found  a  note  of  Mr.  Blaine.  Secretary  of  State,  to  Sir  .Julian 
rauncefote.  British  minister,  of  Ajiril  1,  1801.  referring  to  a  negotiation  to  be 
held  with  representatives  of  Canada  in  Washington  on  the  subject  of  c-ommer- 
cial  relations.     The  opening  of  the  conference  was  finally  fixed  for  Oct.  12,  1891. 

''  II.  Ex.  Doc.  404.  5(J  Cong.  1  sess.  9-13;  S.  Ex.  Doc.  113.  50  Cong.  1  sess. 
127-131. 

'  The  majority  report  was  signetl  by  Messrs.  Sherman.  Edmunds,  Frye, 
Ev.irts.  and  Doljih ;  the  minority  rei)ort  by  Messrs.  Morgan,  Saulsbury,  Brown, 
and  rnyiie.  ( S.  Report  3.  Conf.  ."»(»  Cong.  1  sess.)  The  reiK)rts  were  made 
pulilic. 

■' Cuuyressioual  Record.  50  Cong.  1  sess.  77(J8. 


§1^^8.  ]  THE    NORTHEASTERN    FIS.IERTES.  871 

transit  system,  maintaining  in  this  relation  that  Article  XXIX.  of  the 
treaty  of  Washington  was  no  longer  in  force,  and  the  adoption  of 
such  legislation  as  should  impose  on  Canadian  vessels  and  cargoes 
navigating  the  canals  of  the  United  States  the  same  rule  of  discrimi- 
nation as  was  applied  to  United  States  vessels  and  cargoes  on  the 
Canadian  canals." 

Xo  action  was  taken  by  Congress  in  pursuance  of  these  recom- 
mendations. 

^  The  questions  between  Great  Britain  and  the  United  States 
relating  to  the  rights  of  American  fishermen,  under  treaty  and  inter- 
national comity,  in  the  territorial  waters  of  Canada  and  Xewfound- 
lau(d,  I  regret  to  say  are  not  yet  satisfactorily  adjusted. 

'*  These  matters  were  fully  treated  in  my  message  to  the  Senate  of 
jFebniary  20,  1888.  together  with  which  a  convention,  concluded 
wnder  my  authority  with  ITer  jVIajesty's  Government  on  the  loth  of 
February  last,  for  the  removal  of  all  causes  of  misunderstanding, 
was  submitted  by  me  for  the  ai)proval  of  the  Senate. 

"This  treaty  having  been  rejected  by  the  Senate,  I  transmitted  a 
message  to  the  Congress,  on  the  23d  of  August  last,  reviewing  the 
transactions  and  submitting  for  consideration  certain  recommenda- 
tions for  legislation  concerning  the  important  questions  involved. 

"Afterwards,  on  the  12th  of  September,  in  response  to  a  resolution 
of  the  Senate.  I  again  connnunicated  fully  all  the  information  in  my 
possession  as  to  the  action  of  the  government  of  Canada  affecting  the 
commercial  relations  between  tlie  Dominion  and  the  United  States, 
including  the  treatment  of  American  fishing  vessels  in  the  ports  and 
waters  of  British  Xorth  America. 

"These  communications  have  all  been  published,  and  therefore 
opened  to  the  knowledge  of  l)oth  Houses  of  Congress,  although  two 
w^ere  addressed  to  the  Senate  alone. 

"  Conmient  upon  or  repetition  of  their  contents  would  be  super- 
fluous, and  I  am  not  aware  that  anything  has  since  occurred  which 
should  be  added  to  the  facts  therein  stated.  Therefore,  I  merely 
repeat,  as  applicable  to  the  present  time,  the  statement  which  will  be 
found  in  my  message  to  the  Senate  of  September  12th  last,  "  that  since 
March  3,  1887,  no  case  has  been  reported  to  the  Department  of  State 
wherein  complaint  has  been  made  of  unfriendly  or  unlawful  treat- 
ment of  American  fishing  vessels  on  the  part  of  the  Canadian  authori- 
ties, in  which  re[)aration  was  not  promptly  and  satisfactorily  obtained 
by  the  United  States  consul-general  at  Halifax.' 

"  Having  essayed,  in  the  discharge  of  my  duty,  to  procure  by  nego- 
tiation the  settlement  of  a  long-standing  cause  of  dispute,  and  to 
remove  a  constant  menace  to  the  good  relations  of  the  two  countries, 


o  II.  I-:x.  l>oc.  4.".-l.  .50  Cuny.  1  sess. 


SI '2  NATIONAL  jurisdiction:   territorial  limits.        [§168. 

and  continuing  to  be  of  opinion  that  the  treaty  of  February'  last, 
which  failed  to  receive  the  approval  of  the  Senate,  did  supply  'a  sat- 
isfactory, practical,  and  final  adjustment  upon  a  basis  honorable  and 
just  to  both  parties  of  the  difficult  and  vexed  question  to  which  it 
related,'  and  having  subsequently  and  unavailingly  recommended 
other  legislation  to  Congress  which  I  ho{)ed  would  suffice  to  meet  the 
exigency  created  by  the  rejection  of  the  treaty,  I  now  again  invoke 
the  earnest  and  immediate  attention  of  the  Congress  to  the  condition 
of  this  important  question,  as  it  now  stands  before  them  and  the 
country,  and  for  the  settlement  of  which  I  am  deeply  solicitous." 

I'resldent  Cleveland.  Annual  Message,  Dec.  .3,  1888,  For.  Rel.  1888.  I. 
pp.  x-xi. 

The  nies.sages  referred  to  in  the  foregoing  extract  may  be  found  in  the 
following  documents:  Message  of  Feb.  20,  1888,  H.  Ex.  Doc.  434. 
oO  Cong.  1  sess.  pp.  9-13 ;  S.  Ex.  Doe.  113,  50  Cong.  1  sess.  127-131 ; 
message  of  Aug.  23.  1888,  H.  Ex.  Doe.  434,  50  Cong.  1  sess ;  message 
of  Sept.  12,  1S88,  S.  Ex.  Doc.  265,  50  Cong.  1  sess. 

In  connection  with  the  discussions  of  188(3-1888.  we  may  refer  to  the 
following  prints : 

The  T'nited  States  and  the  Northeastern  Fisheries:  A  History  of  the 
Fishery  Question.  By  Charles  B.  Elliott,  LL.  B.,  Minneapolis,  1887, 
151  pp. 

Isham.  The  Fishery  Question  :  New  York.  1887. 

A  paper  read  by  the  Hon  William  E.  Putnam,  of  Portland,  Maine,  March 
28.  1887.  i)efore  the  Fraternity,  a  social  and  literary  club. 

Diplomatic  Fly-Sheets.  Tuesday.  Mareh  15,  1887.  containing  a  report  by 
the  St.  Pancras  foreign  affairs  eonmiittee  on  "The  alleged  'Rights 
of  American  fishermen  in  British  North-American  waters.'  " 

A  letter  of  William  A.  Day.  counsel  for  the  Grand  Trunk  Railway  Com- 
pany, of  Canada,  to  the  Hon.  William  Windom,  Secretary  of  the 
Treasury,  in  the  matter  of  consular  sealing  of  goods  for  transporta- 
tion through  Canada.  [No  date.]  This  letter  maintains  the  con- 
tinuing force  of  Art.  XXIX  of  the  treaty  of  Washington. 

The  Fisheries  I>ispute.  By  John  Jay.  late  minister  to  Vienna :  New  York, 
1887.  As  may  be  seen  at  p.  9  of  this  pamphlet,  the  author  of  it 
argues  upon  the  assumption,  the  grounds  of  which  are  not  disclosed, 
that  the  convention  of  1818  was  "  suspended,"  in  the  sense  of  being 
supplanted  by  the  treaties  of  1854  and  1871.  As  has  been  seen,  those 
treaties  merely  granted  for  a  term  of  years  and  for  specific  considera- 
tions certain  jirivileges  which  were  not  secured  by  the  convention 
of  ISIS. 

For  i-efcrences  to  fisheries  correspondence,  see  pp.  317-322  of  Martin's 
(General  Index  to  the  Dip.  Cor.  and  For.  Rel.  of  the  United  States. 

'•  On  the  part  of  the  government  of  the  Dominion  of  Canada  an 
effort  has  bc(Mi  apparent  during  the  season  just  ended  to  administer 
tile  laws  and  regulations  applicable  to  the  fisheries  with  as  little 
occasion  for  friction  as  was  possible,  and  the  temperate  representa- 
tion- of  this  Covernment  in  respect  of  cases  of  undue  hardship  or 
of  liarsh  interpretations  have  l)een  in  most  cases  met  Avith  measurers 
of  iransitory  relief.     It  is  trusted  that  the  attainment  of  our  ju.st 


§  168.]  THE    NORTHEASTERN    FISHERIES.  873 

rights  under  existing  treaties  and  in  virtue  of  the  concurrent  legis- 
hition  of  the  two  contiguous  countries  will  not  be  long  deferred  and 
that  all  existing  causes  of  difference  may  be  equitably  adjusted." 

President  Harrison,  annual  message,  Dec.  3,  1889. 

See  report  of  Select  Committee  of  the  Senate  on  Relations  with  Canada, 
July  21,  1890,  S.  Report  1.530,  ol  Cong.  1  sess. 

As  to  the  case  of  the  Honard  Holhrook,  under  the  Newfoundland  bait 
act  of  1889,  see  Mr.  Blaine,  Sec.  of  State,  to  Mr.  Lincoln,  min.  to 
England,  March  30,  1891,  MS.  Inst.  Gr.  Br.  XXIX.  439;  also,  as  to 
the  seizui-e  of  the  Baind  Transit,  under  the  same  act,  see  Mr.  Uhl, 
Act.  Sec.  of  State,  to  Mr.  AYhlte,  Sept.  4,  1894,  198  MS.  Dom.  Let. 
476.  The  act  requires  a  license  to  be  obtained  for  any  exportation 
of  herring  to  foreign  parts,  and  requires  the  licensee  to  give  bond  for 
the  landing  of  the  cargo  in  the  foreign  country. 

The  Frederick  Gerring,  jr.,  having  been  condemned  for  unlawful  fishing  in 
territorial  waters,  was  afterwards  restored  on  payment  of  a  nominal 
fine,  with  costs,  it  being  alleged  in  extenuation  that  the  vessel  caught 
a  seine  full  of  mackerel  outside  and  drifted  inside  the  line  while 
removing  the  fish  from  the  seine.  Gratification  with  the  decision  was 
expressed  l)y  the  Department  of  State.  (Mr.  Day,  Act.  Sec.  of  State, 
to  Mr.  Hay,  min.  to  England,  July  19,  1897,  MS.  Inst.  Gr.  Br.  XXXII. 
172.) 

As  to  the  fine  imposed  on  the  American  schooner  Carrie  E.  Phillips  at 
Shelburne.  see  Mr.  Day,  Assist.  Sec.  of  State,  to  Sec.  of  Treas.  Feb. 
9,  1898,  225  MS.  Dom.  Let.  33.5. 

On  the  representation  of  the  British  ambassador  that  American  fishing 
vessels  were  in  the  practice  of  resorting  to  Canadian  waters  and 
engaging  in  conunercial  transactions,  without  reporting  their  pres- 
ence and  business  to  the  customs  authorities,  as  required  by  the  local 
laws  and  regulations,  the  Secretary  of  the  Treasury  was  requested 
to  communicate  the  c-omplaint  to  the  officials  at  Gloucester,  Mass., 
and  Eastport.  Maine,  whence  the  vessels  complained  of  proceeded, 
with  instructions  to  notify  such  vessels  sailing  from  those  ports 
"  that  the  practice  referred  to  will  subject  them  to  arrest  and  pun- 
ishment by  the  Canadian  authorities,  and  that  in  view  of  the  nego- 
tiations now  pending  between  the  Governments  for  an  amicable 
adjustment  of  fishing  rights  all  causes  of  irritation  should  be 
avoided."  (Mr.  Hay,  Sec.  of  State,  to  Sec,  of  Treas.  Nov.  4,  1898, 
232  MS.  Dom.  Let.  470.) 

As  to  fishing  in  Dixon  Entrance  and  Hecate  Strait  on  the  Pacific  coast, 
see  Mr.  Adee,  2nd.  Asst.  Sec.  of  State,  to  Mr.  Eatock,  Oct.  28,  1897, 
222  MS.  Dom.  Let.  .59. 

For  an  agreement  between  France  and  Great  Britain  in  relation  to  the 
Newfoundland  fisheries,  see  For.  Rel.  1904,  329. 

February  15,  1892,  a  tentative  understanding  was  reached  between 
Mr.  Blaine,  as  Secretary  of  State,  and  the  delegates  of  the  govern- 
ment of  the  Dominion  of  Canada,  for  the  appointment  of  a  commis- 
sion of  two  experts  to  consider  and  report  upon  (1)  the  prevention  of 
destructive  methods  of  fishing  in  the  territorial  and  contiguous 
waters  of  the  two  countries,  and  in  waters  outside  their  territorial 


874  TsATTOXAl.  HTBTSDTCTION  :     fKRRItORTAL    LIMITS.  [§  169. 

limits:  (2)  the  prevention  of  the  i)olluting  and  obstruction  of  such 
contiguous  waters  to  the  detriment  of  fishing-  and  navigation;  (3) 
the  ch)se(l  seasons  which  shouhl  be  observed  in  such  waters;  and  (4) 
the  restociving  and  replenishing  of  such  waters  with  fish.  ^  A  formal 
iigreement  to  this  efl'ect  was  concluded  bv  an  exchange  of  notes."  Mr. 
Richard  Rathbun,  of  the  United  States  Fish  Commission,  was  aj)- 
pointed  connnissioner  on  the  part  of  the  United  States.''  President 
Cleveland,  in  his  annual  nu^ssage  of  December  8,  1894,  stated  that  the 
preliminarv  investigations  of  the  commission  were  in  progress.  The 
time  for  the  conclusion  of  these  investigations  was  afterwards  ex- 
tended.'" The  rei)ort  of  the  commission  was  communicated  to  Con- 
gress February  '24,  1897.'' 

The  subject  of  the  fisheries  was  embraced  in  the  work  of  the  joint 
high  conunission  of  1898-99,  whose  labors  were  suspended  in  conse- 
quence of  differences  touching  the  Alaskan  boundary, 

V.   WHALIJ  FISHERIES. 

§  169. 

In  May,  1799,  a  copy  w\as  sent  to  the  minister  of  the  United  States 
in  London  of  what  purported  to  be  a  proclamation  issued  by  Rear- 
Admiral  Pringle,  commanding  at  the  Cape  of  (lood  Hope,  forbidding 
all  vessels,  except  British,  to  kill  whales  or  seals  on  the  coast  of  thal^ 
colony  within  five  leagues  of  land,  and  threatening,  in  case  of  dis- 
obedience to  his  orders,  to  seize  them  and  send  them  to  the  Cape  to  be 
proceeded  against  according  to  law.  It  was  stated  that  the  American 
whaling  ship  Joanna  had  apparentl}^  been  interfered  with  under  the 
order,  wliich  the  United  States  conceived  to  be  '*  unlawful;  '""  and  the 
minister  was  instructed  to  lay  the  subject  before  Lord  Grenville. 

Mr.  IMokering,  Sec.  of  State,  to  Mi*.  King,  min.  to  p]nglan(i,  May  11,  1799, 
MS.  Inst,  to  U.  States  Ministers,  V.  127. 

*'  I  have  the  honor  to  acquaint  you  that  complaints  have  been 
received  from  the  Russian  (lovernment  that  in  the  month  of  Sep- 

n  Mr.  Foster.  Sec.  of  State,  to  Mr.  Herbert.  British  c-barff«'.  Oct.  4,  3892,  For. 
Rel.  ISDii.  ;n7:  Sir  .Inlian  I'auncefote.  Hrit.  niin.,  to  Mr.  Foster.  Sec.  of  State, 
Dec.  ."..  1S!)2.  For.  Kei.  1S92.  324  :  Mr.  Foster,  Sec.  of  State,  to  Sir  Julian  Pannce- 
fote.  lirit.  niin.  Dec.  c,.  181)2.  For.  Rel.  1892.  :{2(>.  See,  as  to  the  salmon  fish- 
eries in  tiie  Fraser  River.  For.  Rel.  1894,  2.">9. 

''For.  Rel.  ISliJ,  :V21 :  Mr.  Foster,  Sec.  of  State,  to  Mr.  Cogswell,  M.  C,  .Tan. 
28,  181>:!.  I'.Mt  .MS.  DoiM.  Let.  ICO. 

''  -Mr.  (ireshani.  Sec.  of  State,  to  Sir  .lulian  Pauncefote.  British  ambass.  Dec. 
:'.l,  181t4,  .MS.  Notes  to  (Jreat  Britain,  XXII.  OiV:,. 

'' H.  Doc.  'M~>.  .">4  Cong.  2  sess.  178  i»i>.  In  connection  with  the  subject  of  pro- 
tecting the  Hsheries,  see  S.  Mis.  Doc.  28,  44  Cong.  2  sess.;  S.  Rep.  365,  48- Cong. 
1  sess. 


§  170.]  Seat,  fisheries.  §75 

tember,  1858,  two  female  Russian  subjects  were  abducted  from  the 
village  of  Armansk,  on  the  coast  of  the  Province  of  Okhotsk,  bv  the 
crew  of  an  American  vessel.  It  has,  however,  been  imjHissible  to 
identify  the  per|)etrators,  or  even  the  vessel  to  which  they  belonged. 

"  That  Government  naturally  feels  seriously  olfended,  especiallv  as 
other  charges  of  misconduct  against  American  vessels  in  the  same 
quarter  had  also  been  jireferred.  Unless  such  lawless  proceedings 
can  be  checked,  it  is  to  be  feared  that  that  (Jovernment  will  take 
measures  of  prevention  which  would  be  very  injurious  to  our  whaling 
interests  in  the  North  Pacific,  by  prohibiting  the  capture  of  whales 
within  a  marine  league  of  Russian  territory.  Under  these  circum- 
stances, the  propriety  of  issuing  instructions  to  the  collectors  of  the 
several  ports  where  whaling  ships  are  cleared,  to  impress  uj)on  the 
captains  of  such  vessels  necessity  of  their  l)eing  vigilant  toward  pre- 
venting any  such  unlawful  acts  on  the  part  of  their  crew,  is  submitted 
for  your  consideration." 

Mr.  Ciiss,  Sec.  of  State,  to  Mr.  Cobb.  Sec.  of  Treasury,  Nov.  21,  18G0,  5.3, 
MS.  Doni.  Let.  270. 

An  instruction  in  similar  terms,  with  a  view  to  give  warning  to  the^ 
masters  of  American  whalers,  was  sent  to  the  United  States  consul 
at  C'allao.  (Mr.  Trescot,  Assist.  See.  of  State,  to  Mr.  Trevitt,  consul: 
at  Callao,  Nov.  22,  18(50,  30  MS.  Despatches  to  Consuls,  1.3.) 

In  1868  a  correspondence  took  place  between  the  ITnited  States  and 
Russia,  in  consequence  of  the  alleged  interference  of  Russian  officials 
with  the  operations  of  American  whalers  in  the  Sea  of  Okhotsk. 
The  Russian  Government,  stating  that  "  foreign  whalers  are  for- 
bidden by  the  laws  in  force  to  fish  in  the  Russian  gulfs  and  bays  at  a 
distance  less  than  three  miles  from  the  shore,  where  the  right  of  fish- 
ing is  exclusively  reserved  to  Russian  subjects,''  disclaimed  any  inten- 
tion to  interfere  with  whaling  operations  elsewhere. 

Dip.  Cor.  18(i8,  I.  4(>2,  4(r>,  4()T,  4()r»,  470-47,3. 

As  to  whaling  at  the  Falkland  Islands,  see  correspondence  with  the 
British  Government  in  1854,  infra.  §  171. 

VI.  SEAL  FISHERIES. 

1.  Coasts  of  South  America. 

§170. 

''  I  have  had  the  honor  to  receive  your  letter  of  the  18th  ult..  in  which 
you  represent  that  American  A'essels  have  interfered  in  the  fishery 
of  sea  dogs  and  other  amphibious  animals,  upon  points  occupied  by 
Spanish  subjects  on  the  coast  of  South  America,  such  interference 
having  in  many  instances  been  supported  by  force;  and  you  tlierefore 
signify  by, order  of  TTis  Catholic  Majesty,  that  he  has  determined  to 
prevent  for  the  future  a  repetition  of  the  infractions  in  question. 


876  NATIONAL    JURISDICTION:    TERRITORIAL   LIMITS.  [§  l^l. 

"  The  President  of  the  United  States,  having  been  made  acquainted 
with  this  representation,  directs  me  to  assure  you  that  the  United 
States  are  not  inclined  to  countenance  in  any  manner  acts  of  their 
citizens  in  contravention  of  the  rights  of  His  Catholic  Majesty  nor 
to  screen  them  from  the  lawful  consequences  resulting  from  such 
conduct,  but,  at  the  same  time  that  he  manifests  this  respect  to  the 
territorial  sovereignty -of  Spain,  he  expects  from  the  friendly  rela- 
tions of  the  two  countries,  that  the  rights  of  our  citizens  to  navigate 
and  use  the  seas,  and  to  avail  themselves  of  all  the  natural  and  com- 
mon advantages  incident  to  them,  will  be  neither  controverted  nor 
interrupted.'' 

Mr.   Madison,   Sec.  of  State,  to  the  Marquis  of  Casa  Yrujo,  Span,  min., 
June  t,  1803,  14  MS.  Doni.  Let.  158. 

2.  Case  of  the  Falkland  Islands. 

§171. 

"  Having  by  the  President,  by  and  with  the  advice  and  consent  of 
the  Senate,  been  appointed  charge  d'affaires  to  the  Republic  of  Buenos 
Ayres.  you  will  embark  as  speedily  as  possible  for  the  place  of  your 
destination,  in  the  United  States  sloop  of  war,  the  Peacock^  now  lying 
at  Boston. 

'■•  On  the  ordinary  duties  you  w  ill  have  to  perform  as  charged  with 
the  political  interests  of  your  Government,  and  the  protection  of 
your  fellow-citizens  in  their  lawful  intercourse  with  the  country  to 
which  you  are  sent,  you  need  no  particular  instructions.  Your  gen- 
eral knowledge  of  the  subject,  the  perusal  of  the  instructions  to  your 
predecessors,  and  their  correspondence  Avith  the  Government,  will  be 
sufficient  guides  in  that  part  of  your  duties. 

"  There  are.  liowever,  subjects  in  the  relations  between  the  tAvo 
countries  on  which  it  is  necessary  to  put  you  more  particularly  in 
possession  of  the  views  of  your  (loveriuuent — some  of  which  sub- 
jects, for  yoiu'  negotiations,  will  require  the  exercise  of  that  discre- 
tion, industry,  and  talent  you  are  known  to  possess,  and  which  led 
to  your  selection  for  the  present  n.ission. 

*'  1.  The  first  of  these  to  which  it  is  necessary  to  call  your  attention 
are  the  acts  and  pretensions  of  an  individual  at  the  Falkland  Islands, 
pretending  to  or  really  possessing  authority  inider  the  Government 
to  which  you  are  sent. 

'"A  certain  Lewis  Vernet.  who  appears  to  have  formed  an  establish- 
ment at  Soledad.  one  of  the  Falkland  Islands,  has,  within  a  few 
months  ])ast,  captured  three  American  vessels — the  Bi^eak water ^  the 
Ihnrht  of  Stonington.  and  the  H^iperior  of  New  York — under  pre- 
tense that  they  had  infringed  some  unknown  laws  of  the  Republic  of 
Buenos  Ayres,  for  the  protection  of  the  fisheries.     By  the  affidavit 


§  I'^'l-]  SEAL    FISHERIES:    FALKLAND    ISLANDS.  877 

of  William  Mitchel,  copy  of  which  is  annexed,  it  appears  that  two 
of  the  vessels  so  captured  have,  without  any  form  of  trial,  been  api)ro- 
priated  to  the  use  of  Vernet,  and  fitted  out  with  the  avowed  design 
of  making  them  the  instruments  of  further  aggressions  on  the  prop- 
erty of  citizens  of  the  United  States  pursuing  their  lawful  commerce 
and  Easiness  in  those  seas. 

"A  copy  of  Vernet's  circular  to  the  masters  of  vessels  arriving  at 
the  Falkland  Islands,  with  a  copy  of  the  decree,  real  or  pretended, 
under  which  he  professes  to  act,  has  also  been  forwarded  to  the  De- 
partment, by  a  person  in  Philadelphia  (L.  Krumbhaar),  supposed  to 
be  the  partner,  but  certainly  the  correspondent  of  Vernet.  His  letter, 
with  Vernet's  circular,  and  copy  of  the  decree,  are  also  annexed  for 
your  information. 

''  The  lawless  and  piratical  nature  of  these  acts,  could  not  permit 
the  President  for  a  moment  to  believe  that  they  were  authorized  by  a 
friendly  power.  This  persuasion  was  strengthened  by  the  circum- 
stances that,  at  the  date  of  the  alleged  decree  put  forth  by  Vernet  as 
his  authority,  we  had  an  accredited  agent  of  the  Republic  of  Buenos 
Ayres,  who  was  at  the  time  in  active  correspondence  with  that  Gov- 
ernment, and  Avith  this  Department,  whose  despatches  bearing  date 
Avithin  a  few  days  after  that  of  the  pretended  decree,  are  entirely 
silent  on  the  subject. 

"  There  are  other  reasons  for  doubting  the  authenticity  of  this 
paper.  At  the  time  it  bears  date,  the  Government  was  engaged  in  a 
perilous  civil  Avar,  Avith  an  enemy  in  the  immediate  Adcinity  of  the 
city,  Avhich  Avas  terminated  only  a  fcAA^  days  after  by  a  revolution 
changing  their  form  of  goA^ernment,  as  Avell  as  their  governors.  The 
decree  is  in  the  name  of  a  governor  delegate,  appointed  during  the 
absence  of  the  regular  chief,  A\'ithout  the  assistance  of  the  council  of 
government. 

"At  this  time  (the  10th  June  1829)  we  Avere  on  the  most  friendly 
terms  Avith  the  Government  of  Buenos  Ayres.  It  Avas  knoAvn  there 
that,  from  the  earliest  period  of  our  political  existence,  our  citizens 
engaged  in  the  fisheries  had  resorted  to  the  Falkland  Islands  for 
shelter,  for  such  necessaries  as  it  afforded,  and  for  the  purpose  of 
carrying  on  their  business  on  its  shores,  and  in  its  harbors,  and  bays, 
and  it  is  entirely  inconsistent  Avith  this  knoAvledge  and  those  friendly 
dispositions,  that  poAvers  should  have  been  giA^Mi  to  an  individual, 
and  that  individual  not  a  citizen  of  the  country,  to  interrupt  this 
trade  at  his  pleasure,  and  cA^en  making  it  his  interest  so  to  do,  at  the 
same  time  that  the  decree  Avas  kept  secret  from  the  agent  of  our  Gov- 
ernment AA'ho  AA'as  on  the  spot. 

"  With  these  reasons  for  believing  the  pretence  of  a  decree  a  mere 
color  for  piratical  acts,  the  President  has  directed  the  Secretary  of 
the  Navy  to  send  all  the  force  he  could  command  to  those  seas,  AA-ith 


878  NATIO^^\L  jurisdiction  :  territorial  limits.       [§  171. 

the  orders  of  AAliich  a  copy  is  annexed  to  these  instructions;  and  he 
also  communicated  the  representations  he  had  received,  and  the 
measures  he  had  adopted  in  consequence  of  them,  to  Congress  by  a 
message,  copy  of  which  is  also  annexed. 

"  This  statement  of  facts  puts  you  in  possession  of  the  position  of 
this  important  afl'air.  at  this  period. 

••  While  the  Executive  takes  measures  for  the  immediate  protection 
and  relief  of  our  fellow  citizens,  it  will  be  your  duty,  first,  to  justify 
these  measures  to  the  Government  of  Buenos  Ayres  in  case  you  should 
find  on  your  arrival  that  the  authority  set  up  by  Vernet  has  really 
been  given  to  him,  and  is  avowed  by  the  Government,  and  afterwards 
to  place  our  claim  to  the  fisheries  in  a  proper  point  of  view,  and 
secure  it  from  future  interruption,  by  a  formal  acknowledgment  of 
our  right,  and  by  procuring  proper  stipulations  guarantying  its 
undisturljed  exercise  hereafter. 

*•  The  directions  from  the  Navy  Department,  dated  29th  November, 
1831.  are  general — to  afford  protection  to  our  citizens  engaged  in  the 
*  fisheries,  and  in  their  lawful  commerce,  aiid  particularly  if  they  are 
molested  in  their  usual  pursuits  and  trade.* 

••  The  orders  given  on  the  4th  January,  are  in  answer  to  a  request 
by  the  commander  of  the  squadron  for  more  particular  instructions. 
The  circumstances  of  the  case  are  there  stated,  and  the  orders  given 
in  consequence  of  them  are  infinitely  more  moderate  than  those  cir- 
cumstances would  have  justified.  The  commander  is  to  inquire 
whether  the  acts  have  been  done  under  the  allegation  of  authority 
from  the  (Toveniuieut.  and  in  that  case  he  is  merely  directed  to  pre- 
vent our  ships  from  cajiture.  to  retake  those  that  have  fallen  into  the 
hands  of  Vernet,  and  keep  them  until  the  return  of  a  despatch  vessel 
he  is  ordered  to  send  to  you  for  instructions.  The  most  friendly 
forbearance  alone  dictated  these  orders.  The  circumstances  of  the 
case  would  have  justified  immediate  acts  of  hostility  against  the 
perpetrators  of  such  outrageous  acts,  which  we  would  have  had  good 
right  to  suppose  unauthorized.  But  the  more  moderate  and  friendly 
course  has  been  pursued.  There  was  a  possibility  that  Vernet  might 
under  false  pretenses  have  obtained  from  the  delegate  governor  the 
decree  which  he  sets  up  as  his  authority,  and  being  vested  ostensi- 
bly with  a  national  character,  we  thought  it  right  before  proceeding 
further  to  ask  for  a  disavowal  of  the  acts  in  which  we  must  suppose 
he  has  exceeded  his  powers.  You  will  not  fail  to  cause  the  friendly 
spirit  which  dictated  this  course  to  be  perceived,  and  duly  appre- 
ciated. l)efore  you  proceed  to  demand  a  disavowal  of  the  acts  of 
Vernet.  and  restoration,  with  indenmity,  of  the  property  he  has 
seized.     This  you  are  to  do  on  the  following  grounds: 

"■  Fir>t.  That  without  entering  here  into  the  question  of  right, 
which  will  be  hereafter  discussed,  the  seizure  of  our  vessels  can  not 


§171.]  SEAL    fisheries:    FALKLAND    ISLANDS.  879 

be  justified  under  the  decree  from  which  \"ernet  pretends  to  derive 
his  authority,  because,  at  the  period  he  was  so  appointed,  we  were 
in  actual  use  of  the  shores,  bays,  and  harbors  of  those  islands  fotr 
the  purposes  of  shelter  and  fishery,  AVe  had  been  in  such  use  for' 
more  than  fifty  years,  undisturbed  when  there  were  settlements  on- 
the  island,  unmolested  when  there  were  none.  We  had  in  cionse- 
quence  of  this  undisturbed  use  increased  our  capital  employed  in  the- 
fisheries,  and  had  good  reason  to  believe  that,  whatever  right  aii^y 
nation  might  have  to  interfere  Avith  a  use  so  extensively  importan'i- 
tons,  and  so  long  enjoyed,  that  we  should  specially  be  informed  of  such 
conflicting  claim,  more  especially  if  the  chiim  were  set  up  by  a 
friendly  nation  with  whom  we  Avere  then  connected  in  the  usual 
diplomatic  intercourse,  and  Avho,  not  being  ignorant  that  Ave  had 
made  this  use  of  the  shores  they  claimed,  had  suffered  us  uninterrupt- 
edly, and  Avithout  asking  any  permission,  to  enjoy  it  as  a  common 
right.  To  giAC  the  first  notice  of  such  interfering  claim  by  a  seizure 
and  confiscation  of  our  vessels  unsuspectingly  engaged  in  what  they 
deemed  a  laAvful  occupation,  partakes  more  of  a  hostile  act  than  of 
the  assertion  of  a  right  as  used  among  ciA^ilized  nations.  '"^ 

**  Still  stronger  Avould  be  the  reasoning  if  the  act  is  considered  iMJt 
as  one  emanating  from  the  immediate  authority  of  the  nation  for 
the  assertion  of  a  public  right  claimed  by  them,  but  as  the  delegation', 
of  an  authority  to  an  individual  to  exercise  that  national  right  at  his- 
OAvn  discretion,  and  for  his  own  benefit,  in  the  manner  claimed  by  the; 
person  Avho  has.  as  Ave  think,  abused  the  authority,  if  any,  and  what- 
ever it  may  be.  tliat  has  been  A'ested  in  him. 

"  The  decree  in  question,  supposing  it  to  be  authentic,  is  dated  the 
10th  of  June.  18:29.  Mr.  Forbes,  our  charge  d'affaires.  Avas  then  in 
Buenos  Ayres.  Had  the  decree  been  conununicated  to  him,  had  he 
l)een  told  that  the  islands  could  no  longer  be  made  use  of  in  the 
accustomed  manner,  under  the  penalty  of  confiscation  of  the  A'essels 
resorting  there,  he  Avould  haAe  communicated  the  information  to  his 
(lovernment.  and  measures  Avould  have  been  taken  to  inquire  into  the 
right,  and.  if  it  Avere  acknoAvledged.  to  Avarn  our  citizens  that  it  ought 
to  be  res[)ected.  Nothing  of  this  kind  Avas  done,  and  our  ships  are 
seized  and  confiscated  for  the  violation  of  a  riglit  (supposing  it  to  be 
one)  of  Avhich  our  Government  had  no  notice,  and  our  citizens  no 
Avarning.  '  "^ 

"  Should  it  be  said,  in  ansAver  to  this  brancli  of  the  argument,  that 
the  decree  in  question  Avas  published  in  the  gazette  of  the  day.  at 
Buenos  Ayres.  (Avhich  is  not  hoAvever  believed,  as  Mr.  Forbes,  very 
minute  in  his  general  eorresj)ondence.  takes  no  notice  of  it.)  and 
should  this  proAe  to  be  the  fact,  the  reply  is  easy :  First,  the  com- 
nnniication  ought  to  have  be(>n  special.  It  inlerfered  with  an  exist- 
ing and  most  extensiA-e  use,  and  therefore  not  only  a  friendly  disposi- 


880  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  iTl. 

tion,  but  absolute  justice,  required  that  express  notice  should  be  given 
of  an  intent  to  interfere  with  this  use.  Secondly,  the  communica- 
tion of  the  decree,  sui)[)osing  the  publication  a  sufficient  notice,  would 
not  inform  us  of  the  interpretation  that  was  practically  to  be  put 
upon  it.  The  preamble  asserts  a  possession  by  Spain  on  the  10th 
jSIay  1810  of  the  Falkland  Islands,  and  of  all  the  others  near  Cape 
Horn,  including  that  of  Terra  del  Fuego,  and  derives  the  right  in 
the  Eepublic  to  them,  as  forming  part  of  the  vice  royalty  of  the  Rio 
de  la  Plata  by  the  effect  of  the  revolution.  It  then  erects  those 
islands  into  a  military  and  civil  government,  directs  that  the  resi- 
dence of  the  governor  shall  be  on  the  island  of  Soledad,  on  which 
a  battery  is  to  be  erected  under  the  flag  of  the  Republic,  and  directs 
him  (the  governor)  to  enforce  the  laws  of  the  Republic  on  the  inhabit- 
ants. '  and  to  see  to  the  execution  of  the  regulations  of  the  fishery 
on  all  the  coasts  of  the  same.'  What  those  regulations  are,  is  not 
even  hinted  at.  Did  they  apply  to  the  inhabitants  only?  Such 
would  be  the  natural  construction.  Did  they  exclude  foreigners 
from  the  right  of  fishery?  If  so,  some  notice,  some  motive  for 
inquiry,  ought  to  have  been  given.  The  law  of  nations,  founded  in 
the  principles  of  justice,  requires  that  a  right  enjoyed  for  more  than 
a  half  a  century,  even  if  only  b}^  tacit  permission,  be  not  withdrawn 
without  notice:  much  less  ought  any  penalty  to  be  enforced  for  the 
exercise  of  it  before  such  notice.  Thus,  even  supposing  the  right  of 
the  Buenos  Ayrean  Government  to  be  uncontroverted,  we  have  a 
just  cause  to  complain  of  the  seizure  of  our  vessels,  and  to  demand 
restoration  and  indemnity.  But  our  cause  of  complamt  is  rendered 
more  apparent  from  the  manner  in  Avhicli  their  officer,  supposing  him 
to  be  such,  has  executed  their  pretended  right  of  seizure  and  confisca- 
tion, without  trial.  Without  evidence  he  has  imprisoned  the  crew,, 
and  converted  the  vessels  and  cargoes  to  his  own  use.  He  has  done 
this  after  enticing  them  into  his  port  by  the  offer  of  supplies  and 
assistance,  and  as  far  as  apj)ears  without  any  allegation  of  a  breach 
of  their  fishery  laws.  To  what  extent  those  laws  go,  what  fisheries 
they  forbid,  and  in  what  seas  or  on  what  coasts,  are  all  objects 
of  serious  inquiry,  and  must  form  an  immediate  object  of  your 
research. 

"  Without  any  precise  information  on  that  subject,  your  instruc- 
tions nuist  be  hypothetical;  to  remonstrate  against  them  should  they 
be  found  to  contravene  rights  which  we  think  ourselves  entitled  to  by 
the  law  of  nations.  These  will  })e  briefly  explained  as  applicable  to 
the  subject,  and  to  the  circumstances  of  the  two  nations. 

"  The  right  of  fishery,  considered  as  to  the  place  in  which  it  is  to 
be  exercised,  is  that  which  is  carried  on  solely  on  the  high  seas  out  of 
tlic  jurisdiction  of  any  nation;  that  which  is  carried  on  on  the  high 
>eas,  but  within  the  distance  of  the  shore  belonging  to  another  nation, 


§1^1-]  SEAL    FISHERIES:    FALKLAND    fSLAXDS.  881 

which  gives  to  it  a  custoniiiry  jurisdiction:  within  bays  of  the  sea 
included  b}'  an  ideal  line  drawn  from  one  headland  to  another — none 
of  which  require  the  use  of  the  shores  for  the  drying  or  preparing  of 
die  animals  taken  from  the  sea;  and.  finally,  those  fisheries  which 
require  the  UvSe  of  the  shore  for  some  of  the  operations  necessary  for 
the  fishery,  either  to  haul  the  seines,  or  to  prepare  or  dry  the  fish. 

"  The  ocean  fishery  is  a  natural  right  which  all  nations  may  enjoy 
in  common.  P^very  interference  with  it  by  a  foreign  power  is  a 
national  wrong.  When  it  is  carried  on  within  the  marine  league  of 
the  coast,  which  has  been  designated  as  the  extent  of  national  juris- 
diction, reason  seem,s  to  dictate  a  restriction.  If,  under  pretext  of 
carrying  on  the  fishery,  an  evasion  of  the  revenue  laws  of  the  country 
may  reasonably  be  apprehended,  or  any  other  serious  injury  to  the 
sovereign  of  the  coast,  he  has  a  right  to  prohiliit  it.  but  as  such  pro\ii- 
bition  derogates  from  a  natural  right,  the  evil  to  be  apprehended  ought 
to  be  a  real,  not  an  imaginary  one.  Xo  such  evil  can  ])e  apprehended 
on  a  desert  and  uninhabited  coast :  therefore  such  coasts  form  no  excep- 
tion to  the  common  right  of  fishery  in  the  seas  adjoining  tliem. 
All  the  reasoning  on  the  subject  of  the  ocean  applies  to  the  large  bays 
the  entrances  to  which  can  not  be  defended. 

"As  to  the  use  of  the  shores  for  purposes  necessary  to  the  fishery, 
that  depends  on  other  principles.  When  the  right  of  exclusive 
dominion  is  undisputed,  the  sovereign  may.  with  propriety,  forbid  the 
use  of  them  to  any  foreign  nation ;  provided  such  use  interferes  with 
any  that  his  subjects  nuiy  make  of  them ;  but  when  the  shore  is  unset- 
tled and  deserted,  and  the  use  of  it,  of  course,  interferes  with  no  right 
of  the  subjects  of  the  power  to  which  it  belongs,  then  it  would  be  an 
infringement  of  the  right  to  the  common  use  of  the  shores  as  Avell  as 
of  the  ocean  itself,  which  all  nations  enjoy  by  the  laws  of  nature,  and 
which  is  restricted  only  by  the  paramount  right  which  the  sovereign 
of  the  soil  has  to  its  exclusive  use.  when  the  convenience  or  interest  of 
his  subjects  require  it,  or  when  he  wishes  to  apply  it  to  public  pur- 
poses. It  is  true  that  he  is  the  judge  of  this  interest  of  his  subjects, 
and  of  the  necessity  of  using  it  for  his  public  purposes,  but  justice 
requires  that,  where  no  such  jiretension  can  be  made,  the  shores  as 
well  as  the  body  of  the  ocean  ought  to  be  left  common  to  all. 

"  These  principles  seem  to  have  dictated  the  articles  in  the  treaties 
between  the  Ignited  States  and  England.  The  third  article  of  the 
treaty  of  peace  of  1782,  declares  that  the  people  of  the  United  States 
shall  continue  to  enjoy,  unmolested,  the  right  to  take  fish  on  the 
Grand  Bank.  &c.,  and  to  dry  and  cure  their  fish  in  any  of  the  iDi.set- 
th'd  hays,  harbors  and  creeks  of  Nova  Scotia,  Magdalen  Islands, 
and  Labrador,  so  loru/  as  the  same  shall  t'emarn  unsettled,  but  that 
when  settlements  are  made,  they  cannot  enjoy  the  right  without  9. 

H.  Doc.  551 56 


882  NATIONAL   JURISDICTION  :    TERRITORIAL   LIMITS.  [§  171. 

previous  agreement  with  the  inhabitants  or  possessors  of  the  soil. 
In  the  treaty  of  Utreclit.  too.  France  is  allowed  the  use  of  the  unset- 
tled shores,  for  tlie  j)urpose  of  drying  fish,  by  certain  metes  and 
bounds.  But  the  most  remarkable  treaty  on  this  subject  is  that 
entered  into  lietween  Great  Britain  and  Spain  in  1790,  by  which  the 
latter  power  stipulates  not  to  make  any  settlements  on  either  the 
Pacific  or  the  Atlantic  shores  of  America  further  south  than  those 
which  were  then  made.  A  copy  of  this  treaty,  taken  from  a  book 
printed  in  Spain,  in  the  year  1801.  by  authority,  entitled  '  Coleccion  de 
los  tratados."  &c..  is  herewith  delivered  to  you.  This  stipulation  is 
clearly  founded  on  the  right  to  use  the  unsettled  shores  for  the  pur- 
pose of  fishery.  &c.  and  to  insure  its  continuance. 

'■•  But  where  the  unsettled  shore,  although  under  the  nominal  sov- 
ereignty of  one  nation,  is  in  fact  possessed  by  independent  uncivil- 
ized tribes,  the  right  to  exclude  other  nations  from  the  use  of  the 
shores  stands  on  a  much  less  stable  footing.  This  is  the  case  with  all 
the  continent  of  South  America,  to  its  extremity,  from  the  Rio 
Xegro.  or  Rio  Santos,  in  latitude  41°.  and  also  with  the  adjacent 
islands  of  Terra  del  Fuego  and  Staten  land.  On  the  Pacific  side, 
the  Arancaunians.  and  on  the  Atlantic  the  Puelches.  Patagonians, 
and  other  tribes,  are  perfectly  independent.  To  the  common  use  of 
these  shores,  therefore,  there  can  be  no  reasonable  objection. 

"  How  far  the  present  Government  of  Buenos  Ayre.s  is  entitled  to 
the  extent  of  territory  necessary  to  establish  a  right  over  these 
fisheries,  even  supposing  them  to  be  attached  to  the  sovereignty  of 
the  country,  is  another  imi)ortant  question  to  Avhich  your  attention 
must  be  turned,  and  which  we  have  not  the  means  of  determining  here. 
The  vice  royalty  of  Buenos  Ayres  under  the  Spanish  Government 
comprehended  several  provinces  on  both  sides  of  the  La  Plata ; 
these  now  form  separate  governments  as  far  as  their  unsettled  state 
will  alloAv  us  to  judge  of  their  condition.  But  that  Patagonia  was 
ever  included  in  the  Province  of  Buenos  Ayres  proper,  is  not  be- 
lieved. A  project  was  formed  l)v  the  Spaniards  in  17TS  of  forming 
settlements  there.  l)ut  although  the  settlers  came  out  to  ]Monte  Video, 
the  project  was  abandoned,  and  the  whole  of  the  continent,  and 
islands  of  Terra  del  Fuego  and  Staten  land  remain  as  unsettled  and 
desert  now  as  they  were  found  at  the  time  of  their  discovery. 

••  From  the  foregoing  facts,  and  principles  applicable  to  them,  3'ou 
are  instructed  to  press,  in  the  negotiation  you  are  authorized  to  open 
on  the  occasion  : 

••  1.  The  perfect  right  of  the  United  States  to  the  free  use  of  the 
ti-hery — on  the  ocean,  in  every  part  of  it,  and  on  the  bays,  arms  of 
the  sea.  gulfs,  and  other  inlets,  which  are  incapable  of  being  fortified. 

"•  -2.  To  the  same  perfect  right  on  the  ocean  within  a  marine  league 
of  the  shore,  when  the  approach  cannot  be  injurious  to  the  sovereign 


§  ITI.]  SEAL    FISHERIES  :     FALKLAND    ISLANDS.  883 

of  the  country,  as  it  can  not  be  on  the  shores  which  are  possessed  by 
savage  tribes,  or  are  totally  deserted,  as  they  are  to  the  south  of  the 
Rio  Negro. 

"  3.  To  the  same  use  of  the  shores  when  in  the  situation  above 
described. 

'•  4.  That,  even  Avhere  a  settlement  is  made  and  other  circumstances 
would  deprive  us  of  the  right,  a  constant  and  uninterrupted  use  will 
give  it  to  us. 

"  It  can  not  be  denied  that  the  United  States,  since  the  beginning 
of  their  independent  political  existence,  and  even  Avhile  they  were 
colonies,  were,  in  common  with  other  nations,  in  the  undisturbed  en- 
joyment of  the  whale  and  seal  fishery,  with  the  knowledge  of  Spain — 
and  this,  it  is  believed,  applies  particularly  to  the  Falkland  Islands — 
and  at  times  when  there  were  settlements  on  them  as  well  as  when 
they  were  deserted. 

"  The  object  of  establishing  these  points  is  to  embody  them  into  a 
treaty  which  you  have  herewith  a  full  power  to  negotiate  and  con- 
clude. The  articles  on  this  subject  must  acknowledge  our  right  to  the 
fisheries  on  the  shores  while  they  remain  unsettled,  and  you  may  fix 
a  certain  extent  from  each  settlement,  not  to  exceed  ten  leagues  each 
way. 

"'  "With  respect  to  the  vessels  seized  by  Vernet,  if  his  acts  are  avowed, 
you  are  to  justify  their  recapture  (if  they  have  been  taken  by  our 
squadron),  and  demand  their  restitution  if  they  have  not.  on  the 
grounds  hereinbefore  stated  to  show  the  irregularity  of  his  proceed- 
ings: and  if  his  acts  are  disavowed,  you  are  to  give  orders  to  the  com- 
mander of  the  squadron  to  break  up  the  settlement  and  bring  him  to 
Buenos  Ayres  for  trial. 

''  You  will,  in  your  demands  on  the  subject  of  the  fisheries,  use  firm 
but  not  irritating  language.  The  President  is  fully  sensible  of  the  dif- 
ficult situations  in  which  the  internal  troubles  of  the  Republic  have 
placed  its  (jovernment.  and  he  does  not  attribute  to  an  unfriendly 
disposition  acts  that,  in  ordinary  times,  might  wear  such  an  aspect; 
but  he  expects,  from  the  similarity  of  our  republican  forms,  and  from 
a  recollection  of  our  early  recognition  of  their  independence,  and  our 
uniformly  amicable  disposition  since,  that,  on  consideration  of  our 
complaints,  full  justice  will  be  done  to  our  citizens,  and  that  measures 
will  be  taken  to  meet  the  disposition  he  feels  for  a  strict  commercial 
union  on  principles  of  perfect  reciprocity.'' 

Mr.  Livingston,  Sec.  of  State,  to  Mr.  Baylies,  chargi'  d'affaires  to  Bnenos 
Ayres.  ,7an.  20,  1882,  MS.  Inst.  Am.  States.  XIV.  2m. 

See  Mr.  Livingston,  Sec.  of  State,  to  Mr.  Phelps,  Dee.  2,"),  18:i2,  2.5  MS. 
Dora.  Let.  222. 

A  claim  for  salvage  was  made  by  Gilbert  li.  Davison,  second  sailing-master 
of  the  Lexington,  for  personal  services  bestowed  on  some  of  the  seal 


884  ^^vnu^■AL  JURISDlCTlo^' :   tekritokial  limits.        [§  l"*"!- 

skins  which  wore  tal<on  l>.v  ^'ol•not  on  tho  Harriet  juul  whic-li  \v»n"o 
rtH'ovored  by  Tapt.  DiuK-an.  The  court  denied  the  claim,  holding  that 
an  otiicer  had  no  right.  \Aithout  the  express  orders  of  his  government, 
to  enter  the  jurisdiction  of  a  country  at  peace  with  the  United  States 
and  forcibly  seize  upon  property  found  there  and  claimed  by  citizens 
of  the  Fnited  States,  and  that,  as  it  was  j)rove<l  that  Vernet  was  act- 
ing luider  a  commission  from  lUienos  Ayres.  the  seizure  of  the  skins 
in  (juestion  by  Captain  Duncan  was  unlawful.  (Thompson,  .7., 
Davison  r.  Seal-skins.  '2  Paine.  324.)  See.  however,  Williams  t:. 
Suffolk  Ins.  Co..  13  Pet.  ilo. 

"  Dispatches  have  this  day  been  received  from  Mr.  SLiciim.  our 
consul  at  Buenos  Ayres.  by  which  it  appears  that  one  of  the  vessels 
captured  l)y  Vernet.  the  Tldrr'tct.  has  arrived  as  a  })rize  at  that  place. 
She  was  claimed  by  Mr.  Slacum.  Avith  damasfes.  but  under  pretence 
that  the  facts  had  not  been  examined  into  she  was  detained  at  the  date 
of  his  last  letter,  the  t»th  of  December. 

"About  the  time  of  the  arrival  of  the  schooner,  the  United  States 
sloop  of  war  Lcr'nu/toii.  Captain  Duncan,  put  into  Buenos  Ayres.  and 
after  waitinof  some  days  for  the  ansAver  of  that  Government,  sailed,  as 
we  understand  by  advice  from  Montevideo,  to  the  Falklands.  with 
the  purpose  (avowed  to  the  (iovernment  of  Buenos  Ayres)  of  pro- 
tectinof  our  connnerce.  and  disarming  the  band  whom  A''ernet  had  left 
with  orders  to  seize  all  Americans  who  mig-ht  be  found  there. 

'•  Should  this  purj)ose  be  executed,  you  are  to  justify  it  not  only  on 
the  general  grounds  in  your  instructions,  but  on  the  further  facts 
disclosed  in  the  protest  of  the  captain  of  the  Harriet,  Avhich  show  the 
lawless,  and  indeed  piratical  proceedings  of  Vernet  and  his  band — 
imprisoning  the  crews:  leaA'ing  part  of  them  on  desert  islands;  send- 
ing others  to  distant  foreign  ports;  refusing  them  the  liberty  to  come 
with  their  vessel  to  the  port  where  he  sends  her  for  condemnation; 
forcing  others  into  his  service;  encouraging  desertion  from  our  ves- 
sels: rol)l)ing  tliose  which  he  seized  of  their  cargoes,  and  selling  them 
for  his  own  us(>.  w  ithout  any  form  of  trial  or  shoAv  of  authority  from 
the  Crovermnent  of  Buenos  Ayres  for  such  acts;  and  finally,  robbing 
sliiinvrecked  mariners  of  the  Ignited  States,  and  forcing  them  by 
threats  into  his  sei'vice.  These  facts,  which  are  clearly  stated  in  the 
protests,  and  th(»  further  characteristic  of  his  settlement,  that  it  is 
comi)osed  of  deserters  from  our  shi])s.  and  renegades  from  all 
nations,  governed  by  no  laws  Init  the  will  of  Vernet.  show  clearly  that 
it  is  an  estaldishment  dangerous  to  our  commerce.  Avhich  it  is  necessary 
in  >elf-d(>fence  that  we  should  break  up.  whether  the  (jovernment  of 
liiieiios  Ayres  have  a  title  to  the  jurisdiction  of  the  islands,  or  have 
not.  If  they  have  the  jurisdiction,  they  have  no  right  so  to  use  it 
a>  in  any  way  to  interfere  with  our  right  of  fishery,  established  by 
long  u>aire :  but  above  all  to  use  it  in  the  irregular  manner  stated  in  the 


§  ITl.]  SEAL    FISHERIES:    FALKLAND    ISLANDS.  885 

affidavits,  which  thev  do  not  repress;  and  whether  the  omission  pro- 
ceeds from  the  want  of  means,  or  of  inclination,  the  obligation  of  our 
Government  to  protect  its  own  citizens,  in  either  alternative,  is 
equally  imperative. 

'•  You  are  j)articularly  further  instructed  to  use  all  your  endeavors 
to  prevent  this  incident  from  becoming  an  obstacle  to  the  formation 
of  a  commercial  treaty,  and.  if  no  other  expe<lient  offers,  you  may 
insert  an  article  declaring  that,  not  l)eing  able  to  agree,  the  subject  is 
referred  for  future  negotiation,  l)ut.  in  the  meantime,  we  shall  enjoy 
the  right  to  the  fisheries,  as  now  practiced.  This,  however,  is  not  to 
be  resorted  to  unless  it  is  found  impossible  to  j^rocure  a  treaty  on  any 
other  terms. 

"  The  additional  information  just  received  renders  your  presence  at 
the  place  of  your  destination  more  necessary.  And  the  President 
therefore  directs  me  to  say  that,  the  vessel  for.  your  conveyance  being 
ready,  he  expects  that  you  will  embark  without  delay." 

Mr.  Livingston.  Sec.  of  State,  to  Mr.  lijiylies.  charge  d'affaires  to  Buenos 
.\yres.  Fel).  14.  1H:V2.  MS.  Inst.  Am.  Stales.  XIV.  247. 

"  I  have  to  inform  you  that  a  demand  of  indemnification  for  the  seizure  of 
those  vessels  [tlie /frc«A(r«fc/-  and  Hdrrict]  lias  lieen  pending  for  some 
time  past,  and  that  no  ojiportunity  im-  bringing  it  to  a  satisfactory 
close  shall  be  omitted  by  this  Department."  (Mr.  Webster.  Sec.  of 
State,  to  .Mr.  Mayward,  Pres.  Suffolk  Ins.  Co..  Nov.  24.  1842,  32  MS. 
Dom.  Let.  47:i. ) 

See.  as  to  the  release  of  the  vessels  and  crews  by  Captain  Duncan,  and 
the  dispersion  of  Vernefs  colonists,  supi-a.  §  SO.  pp.  2;»8-2!)!». 

The  first  reference  in  the  imblic  documents  of  the  I'nited  States  to  the 
case  of  the  Falliland  Islands  may  l)e  found  in  President  Jackson's 
animal  message  of  Dec.  <i.  1831.  In  this  message  I'resident  .Jackson 
stated  that  the  name  of  the  Uepubllr  of  Buenos  Ayres  had  "been 
used  to  cover  with  a  show  of  authority  acts  injurious  to  our  com- 
merce and  to  the  jiroperty  and  lii)erty  of  oiu*  fellow-citizens;"  that 
an  American  vessel  engaged  in  the  i)ursuit  of  a  trade  "  which  we  have 
always  enjoyed  without  molestation,  has  been  captured  by  a  band 
acting,  as  they  i)retend.  under  the  authcrity  of  the  (Government  of 
Buenos  Ayres;"  that  he  had  sent  an  armed  vessel  to  those  seas  and 
shcmld  send  a  minister  to  inquire  into  the  matter,  as  well  as  into 
the  claim,  if  any.  that  was  set  up  by  Buenos  Ayres  to  the  islands. 
Meanwhile,  he  subuntted  the  matter  tc  the  consideration  of  Con- 
gress, in  order  that  he  might  lie  clotheil  with  such  means  as  might  I)e 
deemed  necessary  "  fur  jiroviding  a  force  adeijuate  to  the  complete 
pnite:  tiiin  (  f  lur  fellow-citizens  fishing  and  trading  in  those  seas." 
(Itichardsin.  .Messages  and  Papers  of  the  Presidents.  II.  .").■>.) 

When  this  message  was  sent  to  Congress,  an  imi>ortant  discussion  was  in 
in-ogress  at  Buenos  .Vyres.  With  reg.ird  to  this  discussion  and  to 
subsequent  events,  the  following  facts  may  be  stated  : 

June  10.  182t>.  the  (;ov«'rmnent  <;f  Buenos  .Vyres  issued  a  decree,  claiming 
as  sutcessor  of  Si»ain  the  Malvinas  (Falkland)  Islands,  and  an- 
nouncing that  a  political  and  military  governor  would  be  appointed 
to  reside  there  and  enforce  the  laws  of  the  Republic,  including  the 


8S0  ^■ATTONAL    .TURTSDTCTTON  :    TERRITORIAL    LTMITS.  [§  iTl. 

resiuliitions  respecting  the  seal  fishery.  (20  Br.  &  For.  State  Papers, 
314.) 

Noveuiher  2(i.  ISol,  Mr.  Shiciini.  rnited  States  consul  at  Buenos  Ayres, 
protested  ajiainst  the  seizure  of  the  American  sealing  schooners 
Harriet.  SKiterior.  and  lireakiratcr  at  the  islands,  by  Mr.  Luis  Ver- 
net.  the  governor.  December  'A,  18;U.  Mr.  Anchorena,  minister  of 
foreign  affairs.  rei)lied,  justifying  tliB  seizure  as  being  in  accordance 
with  law.      (2(1  P.r.  &  For.  State  Papers.  .S14-:'.l(i. 

On  the  same  day  Mr.  Slacum  connnunicated  to  ^Ir.  Anchorena  a  letter 
from  Captain  Duncan,  T'.  S.  S.  Lc.riiif/toii.  of  December  ^,  18.'iL  an- 
nouncing that  he  intended  to  proceed  to  the  islands  for  the  protec- 
tion of  American  citizens  engaged  in  the  fisheries.  Captaiif  Duncan 
referred  to  the  seizure  of  American  vessels  and  stated  that  seven 
Americans  had  been  abandoned  on  one  of  the  islands  without  the 
means  of  subsistence.  He  adverted  to  the  fact  that  the  captures 
were  made  luider  the  assumed  authority  of  the  Government  of 
Buenos  Ayres.  Mr.  Anchorena  referred  the  letter  to  the  minister  of 
war.  The  (Jovernment  of  Buenos  Ayres  suggested  that  Captain  Dun- 
can delay  his  departure  pending  efforts  to  arrange  the  matter; 
but  Mr.  Slacum.  December  G,  IS'H,  stated  that  his  protest  was  made 
by  authority  of  his  Government,  and  that  he  could  not  consent  to 
its  rejection  or  withdrawal.      (Id.  317.) 

In  a  letter  to  Mr.  Anchorena,  of  Dec.  7,  1831,  Captain  Duncan  alleged 
that  Vernet  had  plundered  the  Harriet  of  almost  every  article  on 
board,  and  requested  that  he  be  delivered  up  to  the  United  States 
on  charges  of  piracy  and  robbery,  or  that  he  be  arrested  and  i)unished 
by  Buenos  Ayres.      (Id.  319.) 

On  the  lull  of  December  Mr.  Anchorena  requested  Mr.  Slacum  to  notify 
Captain  Davison,  of  the  Harriet,  in  view  of  the  pendency  of  legal 
proceedings  against  the  schooner,  not  to  leave  the  province  without 
authorizing  some  one  to  act  for  him  in  the  matter.  On  the  same  day 
Mr.  Anchorena  also  re|)lied  to  Mr.  Slacum's  note  of  December  G, 
l)rotesting  against  the  latter's  cimrse,  and  declaring  that  if  Captain 
Duncan  caiTled  oiit  bis  purpose  of  setting  at  naught  the  rights  of  the 
Ke])ulilic  tlu'  (iovernment  would  address  a  formal  comi)laint  to  the 
rnited  States,  in  the  iu'lief  that  the  Ignited  States  would  not  despoil 
the  Government  of  its  possession  of  the  islands.  (20  Br.  &  For. 
State  Papers.  32()-322.)  In  acknowledging,  on  the  l.")th  of  December, 
Mr.  .Vnchorena's  two  notes  of  the  9th,  Mr.  Slacum  stated  that  Cap- 
tain Duncan  had  w<Mghed  anchor  several  hours  before  their  receipt; 
that  the  late  charge  d'affaires  of  the  Fnited' States  had  been  in- 
structed to  remonstrate  against  any  measiu'es  of  the  Government  of 
lUicnos  .\.yres  which  might  be  "calculated  in  the  remotest  degree  to 
impose  any  restraints  whatever  upon  the  enteri)rise  of  the  citizens 
of  the  Fnited  States  engaged  in  the  fisheries  in  questiim,  or  to  impair 
their  undoubted  right  to  the  freest  use  of  them  ;"  and  that  such  a 
remonstrance  was  not  made.  i>robably  because  the  instructi(tns 
reached  the  char,^;'  d'aff.iires  oidy  just  before  his  death.  (20  Bi".  & 
For.  State  Papers.  .322-:'.2G. ) 

Feliruary  14.  ls:;2.  Mr.  (Jarcia.  who  had  succeeded  Mr.  Anchorena  as  min- 
ister of  foreign  affairs,  notified  Mr.  Slacum  that,  in  view  of  the 
■■  al>erration  of  ideas"  and  "irregularity  of  language"  in  his  notes, 
the  (Joverimient  luul  decided  to  susi»end  oflicial  intercourse  with  him 
and  so  to  notify  the  United  States;   and  on  the  same  day  the  Govern- 


§1^1-]  SEAL    FlSllEKIES:     FALKLAND    ISLANDS.  88? 

meiit  issued  a  pruclauiation  stating  that  the  couimander  of  the  Lex- 
ington had  invadetl  the  ishmds,  destroying  public  property,  and  as- 
saulted the  colonists,  some  of  whom  had  been  driven  or  torn  from 
their  homes  or  deluded  by  deceitful  artifices,  and  been  brought  away 
and  cast  upon  the  shores  of  Uruguay.  It  was  declared  that  an 
appeal  would  be  made  to  the  (iovernment  at  Washingtcm.      (Id.  320.) 

February  l.j,  ISMi;.  .Mr.  Slacuni  enclosed  to  the  Government  of  Buenos 
.\yres  a  letter  from  Captain  Duncan,  dated  off  .Montevideo.  February 
11,  18^52,  stating  that  he  wouhl  deliver  up  or  liberate  the  i)risoners 
then  on  board  the  Lexinyton  on  an  assurance  from  the  Government 
that  they  had  acted  by  its  authority.  Mr.  Garcia  immediately  replied 
that  Vernet  was  appointed  military  and  political  governor  under  the 
decree  of  .Tune  Id.  1829.  and  that  he  and  those  serving  under  him 
consecpiently  could  be  answerable  only  to  their  own  authorities. 
(20  Hr.  &  For.  State  I'aiiers.  :!28.) 

June  20,  1832,  Mr.  Baylies,  the  new  United  States  charge  d'affaires,  hav- 
ing reached  his  post,  addressed  a  note  to  Mr.  Maza,  then  minister 
of  foreign  affairs,  with  reference  to  the  seizure  of  the  Harriet 
Superior,  and  Breakuater,  and  the  imprisonment  of  their  crews,  and 
to  the  imprisonment  of  the  ci'ew  of  the  American  schooner  Belville, 
wrecked  on  the  coast  of  Tierra  del  Fuego.  He  complained  that 
Vernet  had  seized  a  large  number  of  seal  skins  and  a  quantity  of 
whalebone,  and  obliged  the  American  crews  by  threats  to  sign  cer- 
tain agreements;  that  Vernet  had  discriminated  against  American 
vessels,  since  he  had  not  interfered  with  a  British  sealer,  declaring 
that  he  could  not  take  an  English  vessel  with  the  same  propriety  a.^ 
he  could  an  American.  Mr.  Baylies  further  stated  that  he  was 
Instructed  to  say  that  the  United  States  utterly  denied  the  existence 
of  any  right  on  th<»  jiart  of  Buenos  Ayres  to  interfere  with  vessels  or 
citizens  of  the  United  States  "  engaged  in  taking  seals,  or  whales,  or 
any  sjiecies  of  tisli  or  marine  animals  in  any  of  the  waters  or  on  any 
shore  or  lands  of  any  or  either  of  the  Falkland  Island.s.  Tierra  del 
Fuego.  Gape  Horn,  or  any  of  the  adjacent  islands  in  the  Atlantic 
Ocean."  He  demanded  full  indemnity  for  what  had  been  done.  In 
support  of  this  demand  he  addressed  to  the  minister  of  foreign 
affairs.  .Tuly  10.  18.32,  a  long  note,  -in  which  he  examined  the 
Argentine  title  to  the  islands,  as  well  as  the  (piestion  of  the  fisheries, 
in  the  sense  of  his  instructions.  ^  (20  Br.  &  For.  State  Papers.  330- 
.3.36,  33.8-344.  34.-)-.340.  .3r.0-3.-)2. ) 

August  8,  18.32.  Mr.  Maza  connmuiicated  to  Mr.  Baylies  a  long  report 
fi-om  Vernet.  defending  his  conduct  as  well  as  the  Argentine  title 
to  the  islands.  The  .\rgentine  Government  refused  to  give  repara- 
tion for  Vernefs  acts,  but  on  the  contrary  demanded  rei>aration  for 
the  acts  of  Captain  Duncan,  and  suggested  the  mediation  or  arbitra- 
tion of  a  third  ]iower.  Mr.  Baylies,  however,  demanded  his  pas.s- 
ports,  which,  after  nuich  insistence  on  his  part,  were  at  length  sent 
to  him.      (20  Br.  &  For.  State  Papers.  3.")8.  3(U-4.30.) 

.January  24.  18.33,  the  Government  of  Buenos  .\yres  sent  t<>  its  House  of 
Representatives  a  message  relating  to  the  occupation  of  the  Falk- 
land Islands  by  Great  Britain.  The  act  of  taking  possession  was 
performed  by  Captain  Onslow,  of  the  British  shiji  of  war  Clio.  Jan- 
uary .3,  18.33.      (2i»  Br.  &  For.  State  Papers.  1194-1100.) 

June  17.  1833,  Mr.  Moreno,  minister  of  Buenos  Ayres  at  London,  ad- 
dressed to  Loi'd  Palmerston  a  long  protest,  giving  a  full  exposition  of 


888  NATIONAL    JURTSDICTTOX  :     TERETTORTAL    LIMITS.  [§  ITl. 

the  Arjjentine  claim  of  title.  Lord  Palinerston's  answer  was  made 
January  S.  1S:>4.  It  maintained  that  (ireat  Britain  had  luiequiv- 
ocally  asserted  her  sovereignty  in  the  discussions  with  Spain  in  1770 
and  1771.  which  ended  in  Spain's  restoring  the  islands.  (22  Br.  & 
For.  State  I'apers.  l,'i(>(',-l.S04.) 

"The  right  of  the  Argentine  (iloverninent  to  jnrisdiction  over  it 
[the  territory  of  the  P'alkhind  Ishinds],  being  contested  by  anotlier 
power  [(ireat  Britain],  and  upon  grounds  of  chiim  long  antecedent 
to  the  acts  of  Captain  Duncan  which  General  Alvear  details,  it  is 
conceived  that  the  United  States  ought  not.  until  the  controversy 
upon  the  subject  between  those  two  Goverinnents  shall  be  settled, 
to  give  a  final  answer  to  General  Alvear's  note,  involving,  as  that 
answer  nnist.  under  existing  circumstances,  a  departure  from  that 
which  has  hitherto  been  considered  as  the  cardinal  policy  of  this 
Government." 

Mr.  Webster.  Sec.  of  State,  to  General  Alvear.  Dec.  4.  1841.  quoted  by  Mr. 
Bayard.  Sec.  of  State,  to  Mr.  Quesada.  Mar.  IS.  ISSG,  MS.  Notes  to 
Arg.  Rep.  VI.  2.-)7. 

In  May.  1853.  the  British  (iovernment  gave  notice  to  the  United 
States  of  an  intention  to  send  a  force  to.  the  Falkland  Islands,  for 
the  purpose  of  preventing  the  killing  of  wild  cattle  as  well  as  other 
dejiredations  there  by  persons  landing  from  vessels  of  the  Ignited 
States;  and  a  warning  ^vas  issued  by  the  Department  of  State  to  the 
masters  of  vessels  and  other  citizens  of  the  United  States  resorting  to 
that  (nuirter.  In  February.  ISo-t,  the  American  whaling  ship  Hudson 
and  her  tender,  the  schooner  Washington,  while  lying  at  New  Island, 
one  of  the  Falkland  group,  were  arrested  on  a  charge  of  taking  some 
pigs  from  one  of  the  islands  and  were  taken  to  Port  Stanley,  where 
they  were  restored,  but  not  till  it  was  too  late  to  complete  the  sea- 
son's voyage.  Complaint  was  made  to  the  British  Government  of 
this  proceeding  as  unjustified  by  the  circmnstances.  it  being  alleged 
that  tlie  crews  of  the  vessels  had  killed  only  a  few  wild  pigs,  the 
progeny  of  hogs  left  l)y  them  on  an  uninhabited  island  for  the  purpose 
of  bree(ling  and  furnisliing  food  in  future  voyages.  In  a  note  to  the 
British  minister  at  Wasliington  of  July  1.  18r)-l-.  Mr.  ]\Iarcy,  who  was 
then  Seci-etary  of  State,  remarked  that  the  warning  issued  by  the 
Department  of  State  *">ai(l  nothing  about  the  sovereignty"  of  the 
islands,  and  that  "while  it  claimed  no  rights  for  the  United  States, 
it  conccMlcd  none*  to  (rreat  liritain  or  any  other  power;"  but  that. 
"  -liould  the  fact,  however,  be  admitted  that  these  islands  were  British 
territory."  the  treatment  of  the  Amei'ican  ships  must  b(^  considered  as 
exceedingly  hai'd.  Mi-.  Marcy  added  :  "A  still  gravel'  matter  of  com- 
jilaint  i>  the  pretension  set  up  bv  these  authorities  to  exclude  our 
citizen^  from  fishing  and  taking  whale  in  the  waters  about  these 


§  ITI.]  SEAL    FISHERTES  :    FALKLAND    LSLAXDS.  889 

islands.     This  right  they  have  long  enjoyed  without  its  being  ques- 
tioned."' 

The  British  Government  disavowed  the  action  of  its  authorities  in 
taking  the  vessels  to  Port  Stanley,  but  on  the  other  hand  complained 
of  the  conduct  of  the  commander  of  the  U.  S.  S.  Gennantown,  who 
was  present  in  the  islands  when  the  incident  occurred.  With  regard 
to  the  question  of  jurisdiction.  Lord  Clarendon  expressed  surprise 
that  Mr.  Marcy  "should  appear  to  call  in  question  the  right. of 
Great  Britain  to  the  sovereignty  of  the  P^tlkland  Islands,"  and 
added :  "  Her  Majesty's  Government  will  not  discuss  that  right  with 
another  power,  but  will  continue  to  exercise,  in  and  around  the  islands 
of  the  Falkland  gi'onp.  the  right  inherent  under  the  law  of  nations  in 
the  territorial  sovereign,  and  will  hold  themselves  entitled,  if  they 
think  fit,  to  prevent  foreigners,  to  whatever  nation  belongiiig.  from 
fishing  for  whale  and  seal  within  three  marine  miles  of  the  coast,  or 
from  landing  on  any  part  of  the  shores  of  the  Falkland  Islands  for 
the  purpose  of  fishing  or  killing  seals.  Furthermore,  and  to  prevent 
all  possibility  of  mistake.  Her  Majesty's  Government  declare  tVial 
they  will  not  allow  the  wild  cattle  on  the  Falkland  Islands  to  be 
destroyed,  or  other  depredations  to  be  committed  on  the  islands  by 
any  foreigners,  to  whatever  nation  they  may  belong,  and  that  all  per- 
sons committing  any  such  spoliations  on  the  islands  will  be  proceeded 
against  under  the  enactments  of  the  colonial  laws." 

Mr.  Marcy.  Sec.  of  State,  to  Mr.  Crampton,  British  uiin..  .July  1.  lSr)4.  and 
XjoxA  Clarendon,  foreign  sec.,  to  Mr.  Cranipton.  Sept.  21.  1S54.  S.  Ex. 
Doc.  19,  42  Cong.  2  sess.  4-7. 

In  an  instruction  to  Mr.  Buchanan,  tlien  minister  to  England,  of  Septem- 
ber 27.  1854.  Mr.  Marcy  directed  that  a  claim  for  indenniity  be  pre- 
sented to  the  British  Government.  It  ai)pears,  however,  that  the 
claim  was  not  i)i"esented.  owing  to  the  receipt  by  Mr.  Buclianan  of  a 
letter  from  Mr.  Marcy.  of  Oct.  8.  18r)4.  which  was  unofficial  and  does 
not  appear  on  the  records  of  the  Department  of  State.  This  letter 
was  written  by  Mr.  Marcy  in  consequence  of  the  receipt  by  him  of 
Lord  Clarendon's  dispatch  to  Mr.  Crampton  of  Sejit.  21.  18.")4.  afte:* 
the  sending  to  Mr.  Buchanan  of  the  instructions  of  the  27th  of  that 
month.      ( S.  Ex.  Doc.  19,  42  Cong,  2  sess.  12. ) 

"  This  Government  is  not  a  party  to  the  controversy  between  the 
Argentine  Ivepublic  and  Great  Britain;  and  it  is  for  this  reason  that 
it  has  delayed,  with  the  tacit  consent  of  the  former,  a  final  answer  to 
its  demands.  For  it  is  conceived  that  the  ((uestion  of  the  liability 
of  the  United  States  to  the  Argentine  Republic  for  the  acts  of  Cap- 
tain Duncan,  in  1831.  is  so  closely  related  to  tlie  question  of  sover- 
eignty ov^er  the  Falkland  Islands,  that  the  decision  of  the  former 
would  inevitably  be  interpreted  as  an  expression  of  opinion  on  the 
merits  of  the  latter.  Such  an  expression  it  is  the  desire  of  this  Gov- 
ernment to  avoid,  so  far  as  an  adequate  referwice  to  the  points  of 


890  NATIONAL    .TURTSDTCTTOX  :    TERRITORIAL    LIMITS.  [§  l72. 

argument  presented  in  tlie  notes  recently  addressed  to  this  Depart- 
ment on  behalf  of  your  (iovernment  ^vill  permit.  .  .  . 

"As  the  resumption  of  actual  occupation  of  the  Falkland  Islands 
by  Great  Britain  in  1883  took  place  under  a  claim  of  title  which  had 
been  previously  asserted  and  maintained  by  that  Government,  it  is 
not  seen  that  the  ^lonroe  doctrine,  which  has  been  invoked  on  the 
part  of  the  Argentine  Kepublic,  has  any  application  to  the  case. 
By  the  terms  in  which  that  principle  of  international  conduct  was 
announced,  it  was  exjjressly  excluded  from  retroactive  operation. 

"  If  the  circumstances  had  been  different,  and  the  acts  of  the  Brit- 
ish Government  had  been  in  violation  of  that  doctrine,  this  Govern- 
ment could  never  regard  its  failure  to  assert  it  as  creating  any  lia- 
bility to  another  power  for  injuries  it  may  have  sustained  in  conse- 
quence of  the  omission.  .  .  . 

'•  But  it  is  believed  that,  even  if  it  could  be  shown  that  the  Argen- 
tine Republic  possesses  the  rightful  title  to  the  sovereignty  of  the 
Falkland  Islands,  there  would  not  be  wanting  ample  grounds  upon 
which  the  conduct  of  Captain  Duncan  in  1831  could  be  defended.  .  .  . 

"  On  the  whole,  it  is  not  seen  that  the  United  States  committed 
any  invasion  of  the  just  rights  of  the  (xovernment  of  Buenos  Ayres 
in  putting  an  end  in  1831  to  Vernet's  lawless  aggressions  upon  the 
persons  and  property  of  our  citizens.*' 

Mr.  Bayard.  Sec.  of  State,  to  Mr.  Quesada,  Mar.  18,  1S86,  MS.  Notes  to 
Arg.  Rep.  VI.  2.j7. 

3.  Berixg  Sea. 

Jj  172. 

By  an  imperial  ukase  of  July  8,  1799,  the  Emperor  Paul  I.  of 

Russia  irranted  to  the  Russian-American  Companv 

Ukase  of  1799.        ,     x^     ^  "  i       ,  i  •   i  i   *      ^i 

Its  first  charter,  which  secured  to  the  company  vari- 
ous rights  as  to  hunting  and  trading  '"  in  the  northeastern  seas  and 
along  the  coasts  of  America."  " 

liy  a  ukase  of  the  Emi)er()r  Alexander,  of  September  7.  1821,  giv- 

mn  his  sanction  to  certain  regulations  of  the  Russian- 
Ukase  of  1821.        .  .  .,  ^,  J.         £ 

American    C  ompany.       tlie    j^ursuits    ot    commerce. 

wlialing.  and  fishing,  and  of  all  other  industry,  on  all  islands,  ports. 

and  gulfs,  including  the  whole  of  the  northwest  coast  of  America. 

I)eginning  from  Bering's  Strait  to  the  ."iP  of  northern  latitude,  also 

from  the  .Vleutian  Islands  to  the  eastern  coast  of  Siberia,  as  well  as 

along  the  Kurile  Islands,  from  Bering's  Strait  to  the  .south  cape  of 

the  island  of  rruj).  viz.  to  b")-  ."iO'  northern  latitude."'  were  '' exclu- 


"  Tor  a  fuller  history  of  the  suhject.  see  Moore,   International  Arbitrations, 
I.  cliap.  xvii.  Too  et  .seii. 


M'''^-]  SEAL    FISHERIES:    BERING    SEA.  891 

sively  granted  to  Russian  subjects,''  and  all  foreign  vessels  were  for- 
bidden, except  in  case  of  distress,  "  not  only  to  land  on  the  coasts  and 
islands  belonging  to  Russia,  as  stated  above,  but  also  to  approach 
them  within  less  than  a  hundred  Italian  miles." 

A  copy  of  the  ukase  was  communicated  by  M.  Poletica,  Russian 
minister  at  Washington,  to  Mr.  John  Quincy  Adams,  then  Secretary 
of  State,  on  January  30/February  11,  1822.  Mr.  Adams  re])lied  on 
the  25th  of  February.  He  protested  against  the  Russian  claim  of 
territory  to  a  point  so  far  south  as  the  fifty-first  degree  of  north 
latitude,  and  declared  that  the  claim  to  exclude  American  vessels 
from  the  shore,  ''  beyond  the  ordinary  distance  to  which  the  terri- 
torial jurisdiction  extends,"  had  "  excited  still  greater  surprise."  He 
therefore  inquired  as  to  the  grounds  of  the  Russian  Government's 
action. 

A[.  Poletica  replied  on  the  28th  of  February,  stating  that  the  pro- 
hibition of  foreign  vessels  from  approaching  the  coast  Avithin  a 
distance  of  a  hundred  Italian  miles  was  a  measure  intended  to  pre- 
vent illicit  trade  and  the  supplying  of  the  natives  with  arms  and 
annnunition,  and  in  conclusion  he  suggested  that  the  possession  by 
Russia  of  the  territory  both  on  the  American  and  the  Asiatic  coast 
from  Bering  Strait  downwards  might  have  justified  a  claim  of  shut 
s('(ts.  l)ut  that  the  Russian  Government  had  "  preferred  only  asserting 
its  essential  rights,  without  taking  any  advantage  of  localities."" 

With  regard  to  the  suggestion  of  mai'e  clausum.,  Mr.  Adams,  in  a 
note  of  March  30,  1822,  observed  that  it  might  "  suffice  to  say  that  the 
distance  from  shore  to  shore  on  this  sea  in  latitude  51°  north  is  not 
less  than  ninety  degrees  of  longitude,  or  -1,000  miles;"  and  with  re- 
gard to  the  prohibition  of  approach  to  the  coasts  he  declared  that  the 
President  was  •"  persuaded  that  the  citizens  of  this  Union  will  remain 
unmolested  in  the  prosecution  of  their  lawful  commerce,  and  that  no 
effect  Avill  be  given  to  an  interdiction  manifestly  incompatible  with 
their  rights."  '^ 

Great  Britain,  as  well  as  the  United  States,  protested  against  the 

ukase  of   1821,   and   as   the   result   of   their   protests 
Treaties    of    1824  ,-,•  ,  i  j.OiTixi 

^  ,„„^  a   nt'gotiation   was  entered   upon   at    St.    l\^tersnurg, 

and  1825.  ^    ^  14l^.  -i  i- 

which    resulted,    April    1<,    1824,    m    the    conclusion 

of   a   convention    between    the   United    States   and    Russia,   wheivbv 

(Art.    I.)    it   was  agreed   ''that,   in   any   part   of  the  Great   Ocean, 

commonly   called   the   Pacific   Ocean,   or   South   Sea,   the   res])ective 

citizens  or  subjects  of  the  high  contracting  parties  shall  be  neither 

disturbed  nor  restrained,  either  in  navigation  or  in  fishing,  or  in  the 

"As  to  the  ukuse  of  1821,  see  Traite  de  Droit  International,  by  F.  de  Martens, 
professor  at  the  University  of  St.  Petersburg  (Paris  ed.  1883),  I.  500. 
''  See,  in  this  rehition,  Memoirs  of  J.  Q.  Adams,  VI.  109. 


892  NATIONAL    JTTRTSDTCTTON  :    TERRTTORTAL   LIMITS.  [§  l72. 

{)o\vor  of  resort  ilia"  to  the  coasts,  upon  points  which  may  not  already 
have  l)een  occupied,  for  tlie  purpose  of  trading  with  the  natives, 
saving  always  tlie  restrictions  and  conditions  determined  by  the  fol- 
h)wing  articles."  These  '*  restrictions  and  conditions,"  as  defined  in 
Articles  II.  and  III..  Avere  (1)  that.  '' Avith  a  vieAv  of  preventing  the 
rights  of  navigation  and  of  fishing  exercised  upon  the  Great  Ocean 
by  the  citizens  and  subjects  of  the  high  contracting  powers  from 
becoming  the  pretext  for  an  illicit  trade."'  the  citizens  of  the  United 
States  should  not  resort  to  any  point  whei'e  there  Avas  a  Russian 
establishment  Avithout  the  permission  of  the  governor  or  connnander. 
nor  subjects  of  Russia.  Avithout  permission,  to  any  establishment  of 
the  United  States  upon  the  nortliAvest  coast;  and  (2)  that  there  should 
not  be  formed  by  the  citizens  of  the  United  States,  or  under  tlie 
authority  of  the  United  States,  "  any  establishment  upon  the  north- 
Avest  coast  of  America,  nor  in  any  of  the  islands  adjacent,  to  the  north 
of  fifty-four  degrees  and  forty  minutes  of  north  latitude,"  nor  by 
Russian  subjects,  or  under  the  authority  of  Russia,  any  establishment 
south  of  that  line.  The  subject  of  commercial  intercourse  Avas  ad- 
justed, temporarily,  by  Articles  IV.  and  V.  of  the  conA'ention,  By 
these  articles  it  Avas  provided  that,  for  a  term  of  ten  years  from  the 
dat(>  of  the  signature  of  the  couA'ention,  the  ships  of  both  poAvers  might 
''  recij)r()cally  frequent,  Avithout  any  hindrance  AvhateA^er,  the  interior 
seas,  gulfs,  harbors,  and  creeks,"  on  the  nortliAvest  coast  of  America 
for  the  i)urpose  of  fishing  and  trading  Avith  the  natives;  but,  from 
the  connnerce  thus  permitted,  it  Avas  provided  that  all  spirituous 
liquors,  firearms,  other  arms,  poAvder,  and  munitions  of  Avar  of  CA'ery 
kind  should  ahvays  be  excepted,  each  of  the  contracting  parties,  hoAV- 
ever.  reserving  to  itself  the  right  to  enforce  this  restriction  upon  its 
OAvn  citizens  or  subjects.  When  the  connnercial  privilege  thus  se- 
cured came  to  an  end  the  Russian  Government  refused  to  rencAV  it, 
alleging  that  it  had  been  abused."  But  undei"  the  most-faA'Ored- 
nation  clause,  contained  in  Article  XI,  of  the  treaty  of  commerce  and 
navigation  l)etween  tlie  United  States  and  Russia  of  December  IS, 
iS.'Vi.  citizens  of  the  United  States  enjoyed  on  the  Russian  coasts 
the  same  i)i'ivileges  of  connnerce  as  Avere  secured  by  treaty  to  British 
sul)jects. 

A  convention  between  (Jreat  Britain  aiul  Russia  for  the  settlement 
of  the  (juestions  betAveen  those  pow(>rs,  gi-owing  out  of  the  idcase  of 
ISiM.  Avas  conchided  at  St.  Petersburg  on  February  28/l(),  1825.  In 
reirard  to  tli(>  rights  of  naviaation,  fishing,  and  of  landing  on  the 
coasts,  its  ])i-ovisi()ns  were  substantially  the  same  as  those  of  the  con- 

"  As  to  tlic  const nictidii  <if  lli(>  ('(nivrntion.  see  ^Ir.  Forsytli.  Sec.  of  State,  to 
Mr.  D.ill.is.  mill,  to  Russiji.  Mny  4  and  Nov.  'A,  18:57,  MS.  Inst.  Russia,  XIV. 
:•.'.».  41. 


§1^2.]  SEAL    FISHEKIf:S:    BERING   sfEA.  8i>3 

ventioii  U'tween  Uus.-ia  aii<l  thf  Unite*!  Stale-.  It  al>o  -e<-ure<l  for 
the  <pace  of  ten  years  the  enjovnient  of  snlMantially  the  -aine  recip- 
I'cx'al  privile«re>  of  comnierce.  The-<'  j>rivile<re-  were  renewed  bv  Ar- 
ticle XII,  of  the  treaty  Ix'tween  (ireat  Britain  an«l  Russia  of  January 
11.  IHHi. 

By  a  convention  sijanied  at  Wa.-hin<rton  on  the  Wth  of  March.  ISOT. 
Cewion  of  Alaska    ^''^'  KnijKMor  of  Ku>.-ia.  in  consideration  of  the  -uni  of 

to  the  United    ST/JOO/XK)  in  gold. ceded  "all  the  territory  and  domin- 
States.  ■••Ill  1  1  •        '       ^    4 

ion     which  he  {xjsse>.-eu  "on  the  continent  of  AnierK  a 

and  in  the  adjacent  i-lands."  to  the  United  State>.  Of  this  eession  the 
eastern  limit,  as  <le>-<riU'd  in  Article  I.  of  the  fonvention.  is  the  line  of 
demarcation  between  the  Kus-ian  and  Briti-h  {x^^^-sion-  as  estab- 
lished by  tlie  Anglo-Iiussian  convention  of  February  28  lO.  1S2."V. 
The  we-tern  limit  is  deHne<l  bv  a  water  line,  bejrinninir  in  Berinjrs 
Straits,  and  proceedin^r  north  and  south  a-  follows:  Be*rinnin<r  at  a 
point  in  those  straits,  on  the  parallel  of  <;.">'  :^0'  ncjrth  latitude,  at  its 
intersection  In'  the  meridian  which  pa.-.«#s  midway  betwe«Mi  the  islands 
of  Krusenstern  or  In<ralook.  aiul  the  island  of  Katmanoff  or  Xoonar- 
IxKjk,  it  "  pnxx'eds  due  north  without  limitation  "  into  the  "  Frozen 
Ocean."  Such  is  the  northward  course.  In  its  southward  course  it 
Ix'gins  at  the  same  initial  point,  and  "  prfx-eeds  thence  in  a  course 
nearly  >f)Uthwe>t.  throujjh  Berinjr-  Straits  and  Bering's  Sea.  so  as 
to  pass  midway  Ix^tween  the  northwest  point  of  the  island  of  St. 
Lawrence  ami  the  >outhea>t  j>oint  of  Ca|X'  Choukotski.  to  the  meridian 
of  one  hundred  and  H'venty-two  we^t  longitude:  thence  from  the 
inter--ection  of  that  meridian  in  a  southwesterly  direction,  so  as  to 
pa-s  midway  Ix'tw*-*'!!  the  i-land  of  Attou  and  the  Copper  Island  of 
the  Kormandor-ki  couplet  or  group  in  the  North  Pacific  Ocean,  to  the 
meridian  of  one  liundred  and  ninety-three  degrees  west  longitude,  so 
as  to  include  in  the  territory  conveyed  the  whole  of  the  Aleutian 
Islands  ea-t  of  that  meridian." 

By  act>  of  July  27.  isr.s.  March  3.  ISOO.  July  1.  1870.  and  March  3, 

^  ,  .  ,  ^  l.s73.  legislation  was  adopted  in  relation  to  the  terri- 
LegislaUon  of  the  i  .     i      rr-i  e  i     • 

United  Sutes.        ^^O'  t""""  (''ded.    These  acts,  -o  far  as  their  provisions 

were  of  a   fxrmanent    nature,   were   afterwards  em- 

Ixxlied  in  the  Revised  Statutes  of  the  United  States.  .^S  U>.>4-1070.'' 


1  F'or  :i  i-.isv  umler  §UC.»;.  «•♦•  I'iiite<l  States  r.  The  K<»<liak.  .>i  Veil.  IU-ik  V2*>. 

A.s  to  the  .\laskaii  tislieries.  mh.'  Sen.  Kx.  Doc.  ."><•.  4<»  <''iii;:.  2  s«  ss. 

F'or  a  i>n<|M>saI  to  Russia  of  a  eonventfon  to  establish  a  ftH-iprix-al  risrht  to  take 
fish  of  every  kind  on  the  ovists  of  all  tlie  iH>s-^*ssii>ns  w  iii<!i  the  l'nite<l  States 
an«l  Ilussia  then  owne<l  or  mijrlit  anjuire  on  the  racifit-  0<-«*aii.  without  restric- 
tion, ami  the  privilege  of  drying  fish  on  fx-cupinl  parts  of  the  cfjasts.  see  -Mr. 
S«'ward,  Se<-.  of  State,  to  Mr.  Stoeckl,  Uus-s.  uiin.,  Oct.  5,  1S<>S,  MS.  Notejj  to 
Uuss.  Leg.  VI.  2.35. 


(S^)4  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  172. 

\o  attempt  was  made  in  them  to  define  the  extent  of  waters  to  which 
their  provisions  applied;  nor  did  any  international  controversy  .sub- 
sequently take  place  as  to  the  killing  of  fur  seals  in  Bering  Sea  till 
1886.  In  1889.  however,  while  the  question  that  was  raised  in  1880 
was  still  pending,  an  effort  was  made  to  amend  §  1956,  R.  S.,  which 
prohibits  the  killing  of  any  otter,  mink,  marten,  sable,  or  fur  seal,  or 
other  fur-bearing  animal,  "within  the  limits  of  Alaska  Territory,  or 
in  the  waters  thereof,"  so  as  to  make  it  "  include  and  apply  to  all  the 
wateVs  of  Bering  Sea  in  Alaska,  embraced  within  the  boundary  lines 
mentioned  and  described  in  the  treaty  with  Russia  .  .  .  by  which  the 
Territory  of  Alaska  was  ceded  to  the  United  States.*"  The  amendment 
passed  the  House:  but  was  changed  in  the  Senate;  and  by  the  bill,  as 
".t  became  a  law,  March  2,  1889,  §  1956  was  merely  "declared  to  include 
and  apply  to  all  the  dominion  of  the  United  States  in  the  waters  of 
Bering  Sea." " 

August  3,  1870.  the  Acting  Secretary  of  the  Treasury,  in  pursuance 
of  the  act  of  July  1.  1870,  leased  the  privilege  of  taking  fur  seals  on 
the  islands  of  St.  Paul  and  St.  George  to  the  Alaska  Commercial 
Company,  a  corporation  organized  under  the  laws  of  the  State  of 
California.  March  25,  1872,  Mr.  T.  G.  Phelps  called  the  attention 
of  the  Treasury  Department  to  reports  that  expeditions  were  fitting 
out  in  San  Francisco,  Hawaii,  and  Australia  for  the  purpose  of  inter- 
cepting the  seals  at  the  Aleutian  Islands;  and  he  suggested  whether 
the  act  of  July  1,  1870.  did  not  authorize  interference  by  means  of 
revenue  cutters  "  to  prevent  foreigners  and  others  from  doing  such 
an  irreparable  mischief  to  this  valuable  interest."  Mr.  Boutwell, 
who  was  then  Secretary  of  the  Treasury,  April  19,  1872,  replied  that 
the  Treasury  Department  had  been  advised  that  such  an  employment 
of  the  revenue  cutters  would  not  be  "  a  paying  one,  inasmuch  as  the 
seals  go  singly  or  in  pairs,  and  not  in  droves,  and  cover  a  large  region 
of  water  in  their  homeward  travel."  and  that  it  was  not  apprehended 
that  they  would  be  driven  from  their  accustomed  resorts,  even  were 
such  attem|)ts  made.  "  In  addition,"  said  Mr.  Boutwell,  "  I  do  not 
see  that  the  United  States  would. have  the  jurisdiction  or  power  to 
drive  off  jiarties  going  up  there  for  that  purpose,  unless  they  made 
such  attempts  within  a  marine  league  of  the  shore.  As  at  present 
advised.  I  do  not  think  it  ex|)edient  to  carry  out  your  suggestions,  but 

" '2~>  Stats.  1(K)<»:  Conjrvessional  Record.  .~)0  Conjr.  2  sess.  vol.  20.  part  ^.  jip. 
22S'_>.  •_>:'.72.  242<;.  244S.  2.->02.  2.-)(«.  2(n4.  2(572 :  Conrad.  Act.  At.-Gen..  May  20. 
Is'.m;.  21  ()]i.  :'.4t».  In  view  of  the  award  of  the  Paris  tribunal,  these  words  must 
i.e  construed  to  mean  the  water  within  three  marine  miles  of  the  shore.  (The 
Alexander.  7.")  Fed.  Rep.  .".19.  44  C.  C.  A.  •  mO  :  racific  Tradin.ii  Co.  r.  Fnited 
St.it. -s.  id.:  the  La  Ninfa.  "j  Fed.  Hep.  oVl  44  C.  C.  A.  048;  Whitelaw  v.  United 
States,  id.) 


§  1T2.]  SEAL    FISHERIES:    BERING    SEA.  895 

1  will  thank  you  to  communicate  to  the  Department  any  further  facts 
or  information  you  may  be  able  to  gather  upon  the  subject.""  ° 

March  12,  1881,  Mr.  French,  Acting  Secretary  of  the  Treasury,  in  a 
letter  to  Mr.  D.  A.  Ancona,  a  citizen  of  San  Francisco,  took  the  ground 
that  all  the  waters  eastward  of  the  water  line  in  the  treaty  of  1867 
Avere  "  comprised  within  the  Avaters  of  Alaska  Territory,"  and  that 
the  penalties  prescribed  by  law  against  killing  fur-bearing  animals 
would  therefore  attach  to  violations  of  the  law  within  those  limits.^ 
March  16,  1886,  a  copy  of  this  letter  was  communicated  to  the  collector 
of  customs  at  San  Francisco,  as  conveying  the  construction  placed 
by  the  Treasury  Department  on  the  statutes  of  the  United  States.^' 

In  September  and  November,  1886,  the  British  minister  at  Wash- 
ington represented  that  three  British  Columbian  seal- 
ing schooners,  the  Carolena,  Onward,  and  Thornton, 
had  been  seized  in  Bering  Sea  by  the  United  States' revenue  cutter 
Corvin:  that  the  master  and  mate  of  the  Thornton  had  been  brought 
before  Judge  Dawson,  of  the  United  States  court  at  Sitka  for  trial; 
that  the  evidence  given  by  the  officers  of  the  revenue  cutter  showed 
that  the  vessel  was  seized  about  sixty  or  seventy  miles  southeast  of  St. 
Georges  Island  for  the  ofi'ense  of  hunting  and  killing  seals  in  that  part 
of  Bering  Sea  east  of  the  water  line  in  the  treaty  of  1867;  that  the 
judge  in  his  charge  to  the  jury,  after  quoting  the  first  article  of  that 
treaty,  declared  that  all  the  waters  east  of  the  line  in  question  were 
"  comprised  within  the  Avaters  of  Alaska,  and  all  the  penalties  pre- 
scribed by  law  against  the  killing  of  fur-bearing  animals  must  there- 
fore attach  against  any  violation  of  law  Avithin  the  limits  heretofore 
described;"  that,  the  jury  having  found  a  A-erdict  of  guilty,  the 
master  of  the  Thornton  was  sentenced  to  imprisonment  for  thirty 
days  and  to  pay  a  fine  of  $500.  and  the  mate  to  imprisonment  for 
thirty  days  and  to  pay  a  fine  of  $300;  and  that  there  Avas  reason  to 
belicA'e  that  the  masters  and  mates  of  the  Onward  and  Carolena  had 
since  been  tried  and  sentenced  to  undergo  similar  penalties. 

In  regard  to  the  seizures  the  Department  ot  State  then  possessed  no 
information ;  but  on  February  3.  1887.  Mr.  Bayard,  Avho  Avas  then 

a  Papers  relating  to  Behring  Sea  Fisheries,  124-126.  In  a  letter  of  January 
18,  1888,  to  Mr.  W.  W.  Eaton,  then  one  of  the  representatives  of  the  Alaska 
Commercial  Company,  Mr.  Koutwell,  referring  to  the  letter  which  he  had  written 
as  Secretary  of  the  Treasury,  said  that,  when  compared  with  the  letter  to  which 
it  was  a  x'eply,  it  was  apparent  that  it  "  had  reference  solely  to  the  waters  of  the 
Pacific  Ocean  south  of  the  Aleutian  Islands."     (House  Report  3883,  50  Cong. 

2  sess.  XII.) 

'>  S.  Ex.  Doc.  lOG,  50  Cong.  sess.  280,  281. 

<-  n.  Report  .3885,  .50  Cong.  2  sess.  xi.  See  T'nited  States  v.  La  Ninfa.  40  Fed. 
Rep.  575:  T'nited  States  r.  The  .lames  G.  Swan,  .50  id.  108;  Uniteti  States  V. 
The  Alexander,  GO  id.  014, 


SiM)  NATIONAL    JUKISDU'TIOX  :    TERRITORIAL    LIMITS.  [§1^2. 

Sccirtarv  of  State,  infornied  the  British  minister  "  that,  without 
coiK-hision  at  this  time  of  any  questions  which  may  be  found  to  be 
involved  in  these  cases  .  .  „  orders  have  l)een  issued  by  the  Presi- 
dent's direction  for  the  discontinuance  of  all  pendino:  proceedings, 
the  discharge  of  the  vessels  referred  to.  and  the  release  of  all  persons 
inider  arrest  in  connection  therewith."' " 

By  formal  copies  of  the  judicial  proceedings  afterwards  received 
in  Washington,  it  appeared  that  the  three  vessels  in  question  were 
condennuMl  October  4.  188G.  for  having  been  '*  found  engaged  in  kill- 
ing fur  seal  within  the  limits  of  Alaska  Territory  and  in  the  waters 
thereof  in  violation  of  section  195(5  of  the  Revised  Statutes  of  the 
Tnited  States."  and  that  they  were,  on  February  9,  1887.  ordered  to  be 
sold.  It  thus  aj^peared  that  the  condemnation  of  the  vessels  rested 
on  the  same  ground  as  the  conviction  and  imprisonment  of  their 
officers. '^ 

In  1887  other  vessels  were  seized,  including  the  Grace,  Dolphin,, 
and  ir.  P.  iSoi/i/yn-d.  October  11.  1887.  Judge  Dawson  filed  an  opin- 
ion in  the  cases  of  the  Grace.  Dolphin,  and  certain  other  vessels,  all  of 
which  he  declared  to  be  forfeited.  His  decision  was  based  on  the 
theory  of  mare  claiisintis 

August  19.  1887.  Mr.  Bayard  instructed  the  ministers  of  the  United 
States  in   France.  Great   Britain,  Germany,  Japan, 

oposa  0  cooper-    jj^j^^^j.^^  ,^^^^  Sweden  and  Xorwav,  to  request  the  Gov- 

ation,  1887.  .  •  . 

ernnients  to  which  they  were  accredited  to  cooperate 

Avith  the  United  States  "  for  the  better  protection  of  the  fur-seal  fish- 
eries in  Bering  Sea."'  "  AVithout  raising  any  question.'"  said  ^Ir.  Bay- 
ard, "  as  to  the  exceptional  measures  which  the  peculiar  character  of 
the  projK'rty  in  ([uestion  might  justify  this  Government  in  taking,  and 
without  reference  to  any  exceptional  marine  jurisdiction  that  might 
projM>rly  be  claimed  for  that  end.  it  is  deemed  advisable — and  I  am 


"  S.  Ex.  Doc.  loti.  ."to  Confr.  2  sess.  VI. 

6  The  text  of  .TiKlsre  Dawson's  charge  to  the  jiu'y  in  the  case  of  the  officers  of 
the  Thornton  en  Augnst  :'.<•.  I.SSK.  may  he  found  at  page  113.  Appendix  1,  Case  of 
the  I'nited  States,  Fur-Seal  Arbitration.  II.  After  quoting  the  language  of  the 
first  article  of  the  treaty  of  cession  of  .March  .'50,  18<JT,  he  rteclai-ed  that  "  Russia 
had  claimed  and  exercised  jurisdiction  over  all  that  i)ortiou  of  Bering  Sea 
embraced  within  the  lK)undarj-  lines  set  forth  in  the  treaty:"  that  "that  claim 
had  been  tacitly  recognized  and  ac<iuiesced  in  by  the  other  maritime  powers  of 
the  world  for  a  long  series  of  years  jtrior  to  the  treaty  ;  "  and  that  the  dominion 
of  liussia  having  p.Msscd  to  the  I'nited  States,  "all  the  waters  within  the 
Itoundary  set  forth  in  this  treaty  to  the  western  end  of  the  Aleutian  Archli)elago 
and  chain  of  islands  are  to  be  considered  as  comprised  within  the  waters  of 
.Mask.i,  and  all  the  jienalties  |)rescribed  by  law  again.st  the  killing  of  fur-bearing 
iinimals  must  therefore  attach  against  any  violation  of  law  within  the  limits 
before  describe<l." 

c-Ca^je  of  the  liiitetl  States.  App.  I.  \\Tj-Vl\,  I'ur-Seal  Arbitration,  II.     . 


§  1T2.]  SEAL    FISHERIES  :    BERING    SEA.  897 

instructed  bv  the  President  so  to  inform  you — to  attain  the  desired 
ends  by  international  cooperation.'"" 

The  Governments  of  France,  Great  Britain,  Japan,  and  Russia 
promptly  made  favorable  responses,  and  negotiations  with  the  British 
and  Russian  Governments  were  entered  upon  at  London.''  In  May, 
3888,  however,  they  were  suspended. 

A  report  on  the  suspended  negotiations  was  made  by  Mr.  Phelps, 
United  States  minister  at  London,  in  a  dispatch  of 

^Th  1^  ^  September  12,  1888.  In  this  report  Mr.  Phelps  stated 
that  he  had  had  an  interview  with  Lord  Salisbury  on 
the  13th  of  August,  one  of  the  objects  of  which  was  to  urge  the  com- 
pletion of  the  convention  between  the  United  States,  Great  Britain, 
and  Russia  for  the  protection  of  the  fur  seals.  This  convention  had, 
said  Mr.  Phelps,  •'  been  virtually  agreed  on  verbally,  except  in  its 
details,"  but  the  consideration  of  it  had  been  suspended  at  the  request 
of  the  Canadian  government ;  and  he  expressed  the  opinion  that  the 
British  Government  would  not  execute  it  without  the  concurrence  of 
Canada,  and  that  the  concurrence  of  Canada  could  not  reasonably  be 
expected.     Mr.  Phelps  continued  : 

"  Under  these  circumstances  the  Government  of  the  United  States 
must,  in  my  opinion,  either  submit  to  have  these  valuable  fisheries 
destroyed  or  must  take  measures  to  prevent  their  destruction  by  cap- 
turing the  vessels  employed  in  it.  Between  these  alternatives  it  does 
not  appear  to  me  there  should  be  the  slightest  hesitation.  Much 
learning  has  been  expended  upon  the  ^discussion  of  the  abstract  ques- 
tion of  the  right  of  ?nare  elausnm.  I  do  not  conceive  it  to  be  appli- 
cable to  the  present  case.  Here  is  a  valuable  fishery,  and  a  large  and, 
if  properly  managed,  permanent  industry,  the  property  of  the  nations 
on  whose  shores  it  is  carried  on.  It  is  proposed  by  the  colony  of  a 
foreign  nation,  in  defiance  of  the  joint  remonstrance  of  all  the  coun- 
tries interested,  to  destroy  this  business  by  the  indiscriminate  slaugh- 
ter and  extermination  of  the  animals  in  question,  in  the  open  neigh- 
boring sea,  during  the  period  of  gestation,  when  the  common  dictates 
of  humanity  ought  to  i)rotect  them,  were  there  no  interest  at  all  in- 
volved. And  it  is  suggested  that  we  are  prevented  from  defending 
ourselves  against  such  depredations  because  the  sea  at  a  certain  dis- 
tance from  the  coast  is  free.  The  same  line  of  argument  Avould  take 
under  its  protection  i)iracy  and  the  slave  trade,  when  prosecuted  in 
the  open  sea.  or  would  justify  one  nation  in  destroying  the  commerce 

o  S.  Ex.  Doc.  100,  50  Cong.  2  sess.  84.  As  to  a  proposal  to  appoint  a  close  time 
for  the  seal  fishing,  adjacent  to  Greenland,  see  Mr.  Fish.  Sec.  of  State,  to  Sir  E. 
Thornton,  British  niin.,  Sept.  17,  1875.  .MS.  Notes  to  Great  Britain,  XVII.  33. 

bS.  Ex.  Doc.  1(M>,  .50  Cong.  '1  sess.  85,  88,  97,  100,  107,  116. 

H.  Doc.  551 57 


898  NATIONAL  jurisdiction:   territorial  limits.       [§  1'''2. 

of  another  by  placing  dangerons  obstructions  and  derelicts  in  the 
open  sea  near  its  coasts.  There  are  many  things  that  cannot  be 
allowed  to  be  done  on  the  open  sea  with  impunity,  and  against  which 
every  sea  is  mare  clausum.  And  the  right  of  self-defense  as  to  per- 
son and  property  prevails  there  as  fully  as  elsewhere.  If  the  fish 
upon  the  Canadian  coasts  could  be  destroyed  by  scattering  poison  in 
the  open  sea  adjacent,  with  some  small  profit  to  those  engaged  in  it, 
would  Canada,  upon  the  just  principles  of  international  law,  be  held 
defenseless  in  such  a  case?  Yet  that  process  would  be  no  more  de- 
structive, inhuman,  and  wanton  than  this.  If  j^recedents  are  Avanting 
for  a  defense  so  necessary  and  so  pi"oper  it  is  because  precedents  for 
such  a  course  of  conduct  are  likewise  unknown.  The  best  inter- 
national law  has  arisen  from  precedents  that  have  been  established 
when  the  just  occasion  for  them  arose,  undeterred  by  the  discussion 
of  abstract  and  inadequate  rules."  °- 

In  1888  no  seizures  were  made,  but  on  August  24,  1889,  Mr.  Ed- 

wardes,  British  charge  d'affaires  ad  interim^  called 
eizures  in  .  j^j^j^^j^j^j^j^  ^q  rumors  of  fresh  seizures.  Subsequently 
he  left  at  the  Department  of  8tate  two  communications  from  Lord 
Salisbury,  both  dated  Oct.  2,  1888,  one  of  which  related  to  the  re- 
newal of  the  suspended  negotiations,  while  the  other  protested 
against  the  new^  seizures,  on  the  ground  that  they  w^ere  w'holly  un- 
justified by  international  law. 

These  communications  were  answered  by  Mr.  Blaine  on  the  22d 

of  January,  1800.  In  this  rej)ly  Mr.  Blaine  took 
Positions  of  Mr.     ^^i^^,  ground  that  ''  the  Canadian  vessels  arrested  and 

detained  in  the  Bering  Sea  were  engaged  in  a  pur- 
suit that  was  in  itself  contra  honon  mores,  a  pursuit  which  of  neces- 
sity involves  a  serious  and  permanent  injury  to  the  rights  of  the  Gov- 
ernment and  people  of  the  United  States."  To  establish  this  ground 
it  was  not  necessary,  he  said,  "  to  argue  the  question  of  the  extent  and 
nature  of  the  sovereignty  of  this  Government  over  the  waters  of  the 
Bering  Sea,"  or  "  to  define  the  jjowers  and  privileges  ceded  by  His 
Imperial  Majesty  the  Emj^eror  of  Russia  in  the  treaty  by  which  the 
Alaskan  territory  was  transferred  to  the  United  States."  It  could 
not  be  unknown  to  Iler  Majesty's  Government  that  one  of  the  most 
valuable  sources  of  revenue  from  the  Alaskan  possessions  was  the  fur- 
seal  fisheries  of  Bering  Sea.     "  Those  fisheries  had,"  said  Mr.  Blaine, 

"Case  of  the  T'nited  States,  Appendix  I.  lSl-18.''..  Fur  Seal  Arbitration.  II. 

"  My  endeavors  to  establish  by  international  <-()oi)eration  measures  for  the  pre- 
vention of  the  extermination  of  fur-seals  in  Berinj;  Sea  have  not  been  relaxed, 
and  I  have  hoi)es  of  V)eing  enableil  shortly  to  submit  an  effe<tive  and  satisfactory 
eonventional  projrt  with  the  maritime  powers  for  the  api)roval  of  the  Senate." 
(President  Cleveland,  annual  message,  Dec.  3,  1888,  For.  Rel.  1888.  I.  p.  xii.) 


§  172.]  SEAL    FISHERIES  :    BERING    SEA.  899 

"  been  exclusively  controlled  by  the  Government  of  Russia,  without 
interference  or  without  question,  from  their  original  discovery  until 
the  cession  of  Alaska  to  the  United  States  in  1867,"  and  in  like  man.- 
ner  by  the  Government  of  the  United  States  from  1867  to  188(5,  when 
"  certain  Canadian  vessels  asserted  their  right  to  enter,  and  by  their 
ruthless  course  to  destroy  the  fisheries  "  and  with  them  ''  the  result- 
ing industries  "  Avhich  were  so  valuable.  The  Government  of  the 
United  States  at  once  proceeded  to  check  this  movement,  and  it  was, 
Mr.  Blaine  declared,  a  cause  of  "  unfeigned  surprise "  that  Her 
Majesty's  Government  should  immediately  interfere  to  defend,  and 
encourage  by  defending,  the  course  of  the  Canadians  "  in  disturbing 
an  industry  which  had  been  carefully  developed  for  more  than  ninety 
years  under  the  flags  of  Russia  and  the  United  States."  So  great 
had  been  the  injury  from  this  irregular  and  destructive  slaughter  in 
the  open  waters  of  Bering  Sea  that  the  Government  of  the  United 
States  had  been  compelled  to  reduce  the  number  of  seals  allowed  to  be 
taken  on  the  islands  from  100.000  to  60,000  annually.  It  was  doubt- 
ful, said  Mr.  Blaine,  whether  Her  Majesty's  Government  would  abide 
by  the  three-mile  rule,  on  which  it  was  sought  to  defend  the  Canadian 
sealers,  if  an  attempt  were  made  to  interfere  with  the  pearl  fisheries 
of  Ceylon,  which  extended  more  than  twenty  miles  from  the  shore 
line,  which  were  enjoyed  by  England  without  molestation,  and  which 
Her  Majesty's  Government  felt  authorized  to  sell  the  right  to  engage 
in,  from  year  to  year,  to  the  highest  bidder ;  nor  was  it  credible  that 
destructive  modes  of  fishing  on  the  Grand  Banks  of  Newfoundland, 
by  the  explosion  of  dynamite  or  giant  powder,  would  be  justified  or 
even  permitted  by  Great  Britain  on  the  plea  that  the  vicious  acts 
were  committed  more  than  three  miles  from  shore.  A^'^ly  were  not 
the  two  cases  parallel?  The  Canadian  vessels  were  engaged  in  the 
taking  of  fur  seals  in  a  manner  that  insured  the  extermination  of  the 
species,  in  order  that  "  temporary  and  immoral  gain  "  might  be  ac- 
quired by  a  few  persons.  "'  The  law  of  the  sea,"  continued  Mr. 
Blaine,  "  is  not  lawlessness."  One  step  beyond  the  protection  of  acts 
which  were  immoral  in  themselves  and  which  inevitably  tended  to 
results  against  the  interests  and  welfare  of  mankind,  and  piracy 
would  find  its  justification.  The  forcible  resistance  to  which  the 
United  States  was  constrained  in  Bering  Sea  was,  declared  Mr. 
Blaine,  in  the  President's  judgment.  "  demanded  not  only  by  the 
necessity  of  defending  the  traditional  and  long-established  rights  of 
the  United  States,  but  also  the  rights  of  good  government  and  of 
good  morals  the  world  over."  The  President  was  persuaded  that 
"  all  friendly  nations "  would  "  concede  to  the  United  States  the 
same  rights  and  privileges  on  the  lands  and  in  the  waters  of  Alaska 


900  NATIONAL   JURISDICTION  :    TERRITORIAL    LIMITS.  [§  172. 

which  the  same  friendly  nations  always  conceded  to  the  Empire  of 
Russia."" 

On  June  5,  1890,  the  British  minister  left  at  the  Department  of 
State  a  coi)y  of  an  instruction  of  the  Marquis  of  Sal- 
Lord  Salisbury's  i^^bury  of  May  22,  1890,  in  answer  to  Mr.  Blaine's  note 
of  the  22nd  of  January.  With  regard  to  the  argu- 
ment advanced  in  that  note.  Lord  Salisbury  said  it  was  obvious  that 
two  questions  were  involved  :  First,  whether  the  pursuit  and  killing  of 
fur  seals  in  certain  parts  of  the  open  sea  Avere,  from  the  point  of  view 
of  international  morality,  an  offense  contra  honos  mores,  and,  sec- 
ondly, whether,  if  such  Avere  the  case,  this  fact  justified  the  seizure  on 
the  high  seas  and  subsecpient  confiscation  in  time  of  peace  of  the  ])ri- 
vate  vessels  of  a  friendly  nation.  IJeferring  to  a  special  message  of 
President  Tyler  to  Congress  of  February  27,  1848.  Lord  Salisbury 
said  it  Avas  an  axiom  of  international  maritime  hiAv  that  such  action 
Avas  admissible  oidy  in  the  case  of  piracy  or  in  pursuance  of  special 
international  agreement.  The  pursuit  of  seals  in  the  open  sea  had 
never  been  considered  as  piracy  by  any  civilized  state.  Eavu  in  the 
case  of  the  slaA'e  trade,  a  practice  Avhich  the  civilized  Avorld  had 
agraiMl  to  look  upon  Avith  abhorrence,  the  right  of  arresting  the  ves- 
sels of  another  country  could  be  exercised  only  by  special  interna- 
tional agreement,  and  no  one  goAernment  had  been  allowed  that  gen- 
eral conti-ol  of  morals  in  this  respect  Avhich  Mr.  Blaine  claimed  on 
behalf  of  the  United  States  in  regard  to  seal  hunting.  But  Her 
Majesty's  (lovernment,  said  Lord  Salisbury,  nuist  also  question 
Avhether  the  killing  of  seals  coidd  of  itself  be  regarded  as  contra  honos 
mores^  unless  and  until  for  special  reasons  it  had  been  agreed  by  inter- 
national arrangement  to  forbid  it.  Fur  seals  Avere  indis])utably  ani- 
mals fcr<i'  ii(itiira\  and  these  had  universally  been  regarded  by  jurists 
as  res  na/lii/.s  until  they  Avere  caught,  and  no  person,  therefore,  could 
have  })roperty  in  them  until  he  had  actually  reduced  them  to  posses- 
sion by  captui-e.  As  to  the  argument  that  the  fur-seal  fisheries  had 
been  exclusively  controlled  by  Russia  and  the  Ignited  States  succes- 
sively down  to  ISSC).  T^ord  Salisbury  quoted  from  the  correspondence 
in  relation  to  the  ukase  of  1821  and  from  certain  subsequent  corre- 
spondence to  show  that  Russia  had  enjoyed  no  mono})oly  of  the  fish- 
eries. He  also  denied  that  from  18(>7  to  188(5  the  enjoyment  of  the 
seal  fisheries  by  the  Fnited  States  Avas  uninterrui)ted.  and  he  quoted 
the  rej)()rts  of  various  officials  of  the  United  States  from  1870  to  1884 
in  sui)port  of  this  denial.     As  to  the  argument  that  the  taking  of  seals 

"  Mr.  lilaine.  Sec  of  Stnte,  to  Sir  .7.  raiincefote,  Brit.  min..  Jan.  22.  1800,  For. 
Rt'l.  1S!M».  ;',(')(•>-.'>> TO.  Tlic  lu'fiotiations  for  a  eoniniission  of  experts  and  a  modus 
Vivendi,  wliicli  tool<  place  subscciuontly  to  the  foregoing  correspondence,  are 
hero  omitted.  They  arc  fully  detailed  in  Moore,  Int.  Arbitrations,  I.  787-793. 
See,  also,  ^'orth  Am.  Commercial  Co.  v.  United  States  (1898),  171  U.  S.  110. 


§  l'J'2.]  SEAL    FISHERIES  :    BERING    SEA.  901 

in  the  open  sea  rapidly  led  to  their  extinction,  he  declared  that  the 
statement  would  admit  of  reply,  and  that  abundant  evidence  could  be 
adduced  on  the  other  side,  but  that,  as  it  had  been  proposed  that  this 
(juestion  should  be  examined  by  a  commission  of  experts  to  be 
appointed  by  the  two  Governments,  it  was  not  necessary  to  deal  with 
it  on  the  present  occasion.  The  nefjotiations  then  in  progress  in 
Washington  proved,  he  said,  the  readiness  of  Her  ^Majesty's  Govern- 
ment to  consider  whether  any  special  international  agreement  was 
necessary  for  the  j^rotection  of  the  fur-seal  industry,  and  in  its 
absence  they  were  unable  to  admit  that  the  case  put  forward  on 
behalf  of  the  United  States  afforded  any  sufficient  justification  for 
the  forcible  action  already  taken  against  peaceable  subjects  of  Her 
Britannic  Majesty  engaged  in  lawful  operations  on  the  high  seas." 

To  this  communciation  Mr.  Blaine  replied  on  the  30th  of  June  in 
Mr.  Blaine's  argn-  ^  ^^^^^  ^^  ^^'^'  J^ili'^i^  Pauiicefote.  This  note,  which 
ment  as  to  Rus-  is  of  considerable  length,  is  almost  wholly  devoted 
sian  rights  in  to  an  argument  to  show  that  the  jurisdictional  claim 
Behring  Sea.  ^^f  Russia  put  forth  in  the  ukase  of  1821  was  acqui- 
esced in  by  Great  Britain  and  the  United  States  north  of  the  sixtieth 
parallel  of  north  latitude.  Mr.  Blaine  contended  that  the  protest  of 
Mr.  Adams  Avas  not  against  the  Russian  claim  itself,  but  against  its 
extension  southward  to  the  fifty-first  degree  of  north  latitude;  that 
the  term  "  Continent  of  America,"  as  used  by  Mr.  Adams,  was  em- 
ployed not  in  the  geographical  sense,  but  to  distinguish  the  territory 
of  "America  "  from  the  territory  of  the  "  Russian  possessions;  "  that 
the  phrase  "  Northwest  coast  "  was  used  in  two  senses — one  including 
the  northwest  coast  of  the  Russian  possessions,  and  the  other  mereh^ 
the  coast  of  Auierica  whose  northern  limit  was  the  sixtieth  parallel 
of  north  latitude,  and  that  it  was  used  by  Mr.  Adams,  as  Avell  as  by 
British  statesmen  at  the  time,  in  the  latter  sense.  Mr.  Blaine  also 
contended  that  in  the  treaties  concluded  by  the  United  States  and 
(ireat  Britain  with  Russia  in  1824  and  IS-J.")  there  was  no  "  attempt  at 
regulating  or  controlling,  or  even  asserting  an  interest  in,  tlie  Rus- 
sian possessions  and  the  Bering  Sea.  which  lie  far  to  the  north  and 
west  of  the  territory  which  formed  the  basis  of  the  contention."  He 
argued  that  the  terms  ''  (ireat  Ocean,"  ""  Pacific  Ocean."  and  "  South 
Sea  "  did  not  include  the  Bering  Sea.  Tlie  treaties  in  question  were, 
he  contended,  a  practical  renunciation  both  on  the  part  of  England 
and  the  United  States  of  any  rights  in  the  waters  of  Bering  Sea 
during  the  period  of  Russia's  sovereignty.  In  regard  to  the  waters 
of  that  sea,  he  declared  that  the  ukase  of  1821  stood  unmodified,  and 
that  both  the  United  States  and  Great  Britain  recognized,  respected, 
and  obeyed  it.  Whatever  duty  Great  Bi-itain  owed  to  Alaska  as  a 
Russian  province  was  not,  he  declared,  changed  by  the  mere  fact  of 

a  For.  Rel.  1890,  419-424. 


902  NATIONAT.   JURISDICTION  :    TERRITORIAL    LIMITS.  [§  172. 

the  transfer  of  sovereignty  to  the  United  States;  and  in  conclusion 

he  reasserted  that  no  destructive  intrusion  by  sealers  into  Bering  Sea 

began  until  ISSt)." 

The  answer  of  Lord  Salisbury  to  this  note  bears  date  the  2d  of 

r    >j  o„n=».„,.„'=    Aumist.     In  this  answer  Lord  Salisbury  maintained 
Lord   SalisDury  s  ^ 

answer  and  offer  that  the  protest  of  Mr.  Adams  covered  the  wdiole  of 
of  arbitration.  the  extraordinary  jurisdictional  claim  made  in  the 
ukase  of  1821,  and  that  in  all  the  correspondence  there  was  no  refer- 
ence to  any  distinctive  name  for  Bering  Sea,  or  any  intimation  that 
it  could  be  considered  otherwise  than  as  forming  an  integral  part  of 
the  Pacific  Ocean.  When  Mr.  Adams  declared  that  the  United  States 
'"  could  admit  no  j)art "  of  the  claims  set  forth  in  the  ukase,  his  clear 
object  was  to  deny  that  the  Russian  settlements  gave  Russia  any  right 
to  exclude  the  navigation  or  fishery  of  other  nations  over  any  part  of 
the  sea  on  the  coast  of  America :  and  such,  also,  was  the  object  of  tlie 
treaties  of  1824  and  1825.  Lord  Salisbury  also  quoted  extracts  from 
the  instructions  given  by  Mr.  George  Canning  to  Mr.  Stratford  Can- 
ning, when  the  latter  was  named  as  minister  plenipotentiary  to  nego- 
tiate the  treaty  of  1825,  by  which  it  appeared,  first,  that  England 
refused  to  admit  any  part  of  the  claim  asserted  in  the  ukase  of  1821 
to  an  exclusive  jurisdiction  of  one  hundred  Italian  miles  from  the 
coast  from  Bering  Straits  to  the  fifty-first  parallel  of  north  latitude; 
second,  that  the  convention  of  1825  was  regarded  on  both  sides  as  a 
renunciation  by  Russia  of  that  claim  in  its  entirety,  and,  third,  that, 
though  Bering  Straits  were  known  and  sjjecifically  provided  for, 
Bering  Sea  was  not  known  by  that  name,  but  was  regarded  as  part 
of  the  Pacific  Ocean.  Lord  Salisbury  further  contended  that  the 
public  right  to  fish,  catch  seals,  or  pursue  any  other  lawful  occupation 
on  the  high  seas  could  not  be  held  to  be  abandoned  by  a  nation  from 
the  mere  fact  that  for  a  certain  number  of  years  it  had  not  suited  the 
sul)jects  of  that  nation  to  exercise  it ;  and  in  conclusion  he  proposed 
that  if  the  (lovernment  of  the  United  States,  after  an  examination 
of  the  evidence  and  argument  which  he  had  produced,  should  still 
dilfer  from  Her  Majesty's  (xovernment  as  to  the  legality  of  the  recent 
captures  in  Bering  Sea,  the  question,  together  with  the  issues  that 
depended  upon  it.  should  be  referred  to  impartial  arbitration." 

To  this  conmninication  Mr.  Blaine  replied  on  the  17th  of  Decem- 

Mr.  Blaine's  reply;    '"''"•  '*"^^   ''^   ^'^*'  outset   lie  observed   that  legal   and 

the    "Pacific    diplomatic   questions,   apparently   complicated,   were 

Ocean;"   ques-    often   found,  after  prolonged   discussion,  to  depend 

tionsforarbitra-    „pon  the  settlement  of  a  single  point.     Such  was,  he 

said,  the  position  of  the  United   States  and  Oreat 

Britain,     (ireat  Britain  contended  that  the  phrase''  Pacific  Ocean,''  as 

"Foi-.  Kel.  IS'JO,  437-448  ;  H.  Ex.  Doc.  450,  ;>1  Cong.  1  sess.      ^For.  Rel.  1890,  456-^65. 


§  1T2.]  SEAL    FISHERIES  :    BERING    SEA.  908 

used  in  the  treaties  of  18'24  and  IH'Ii'),  included  Bering  Sea;  the  United 
States  contended  that  it  did  not.  If  Great  Britain  could  maintain  her 
position  on  this  point,  the  Government  of  the  United  States  had,  Mr. 
Blaine  declared,  "  no  well-grounded  complaint  against  her."'  If,  on 
the  other  hand,  the  United  States  could  prove  that  Bering  Sea  at 
the  date  of  the  treaties  was  understood  by  the  three  signator}"  powers 
to  be  a  separate  body  of  water,  and  was  not  included  in  the  phrase 
"•  Pacific  Ocean,"  then  the  American  case  against  Great  Britain  was 
"  complete  and  undeniable."  Mr.  Blaine  then  renewed  and  amplified 
the  arguments  which  he  had  previously  advanced  to  show  that  the 
term  *'  Pacific  Ocean  "  was  not  intended  to  include  Bering  Sea." 

In  answer  to  the  offer  of  Lord  Salisbury  to  arbitrate,  Mr.  Blaine 
proposed  five  questions  on  which,  in  the  opinion  of  the  President,  a 
substantial  arbitration  might  be  had.  The  first  four  related  to  the 
jurisdictional  rights  of  Russia  and  their  transfer  to  the  United  States. 
The  fifth  related  to  the  rights  of  the  United  States  as  to  the  fur-seal 
fishery  in  the  waters  of  Bering  Sea  outside  of  the  ordinary  terri- 
torial hmits,  whether  such  rights  grew  out  of  the  cession  by  Russia, 
or  "  of  the  ownership  of  the  breeding  islands  and  the  habits  of  the 
seals  in  resorting  thither  and  rearing  their  young  thereon  and  going 
out  from  the  islands  for  food,  or  out  of  any  other  fact  or  incident 
connected  with  the  relation  of  those  seal  fisheries  to  the  territorial 
possessions  of  the  United  States."  If  the  determination  of  the  fore- 
going questions  should  leave  the  subject  in  such  a  position  that  the 
concurrence  of  Great  Britain  was  necessary  for  the  protection  of  the 
fur  seal,  it  was  further  proposed  that  the  tribunal  of  arbitration 
should  determine  what  measures  were  necessary  for  that  purpose. 
In  conclusion.  Mr.  Blaine  declared  that  the  repeated  assertions  that 
the  United  States  demanded  that  the  Bering  Sea  be  pronounced 
mare  dausuni^  were  without  foundation.  "The  Government,''  he 
said,  "  has  never  claimed  it  and  never  desiried  it.  It  expressly  disa- 
vows it."  ^  He  further  stated  that  the  views  of  the  President  were 
well  expressed  by  Mr.  Phelps  in  his  dispatch  of  September  12,  1888, 
and  from  this  dispatch  he  then  cited  the  passage  which  has  already 
l)een  quoted.'' 

"  He  also  refei-red  to  an  act  of  the  British  Parliament,  passed  after  the  trans- 
portation of  Napoleon  to  the  island  of  St.  Helena,  by  which  power  was  assumed 
to  exclude  ships  of  any  nationality  not  only  from  landinsi  on  the  island,  but 
from  hovering  within  eight  leagues  of  its  coast,  and  to  the  case  of  the  pearl 
fisheries  in  the  Indian  Ocean,  under  the  control  of  the  British  Government. 

6  "For  several  years  [prior  to  ISOO]  the  Tnited  States,  asserting  that  it  had 
territorial  jurisdiction  over  Bering  Sea,  had  been  striving  to  prevent  vessels  of 
foreign  nations  from  seal  hunting  on  the  open  waters  thereof."  (Fuller.  C.  J., 
in  North  Am.  Conmiercial  Co.  r.  United  States  (1898).  171  V.  S.  110,  132.) 

'■  .Message  of  .Ian.  .",,  1801.  H.  V.\.  Doc.  144,  ."il  Cong.  _'  sess.  ;  For.  Rel.  1890,477. 


904  NATIONAL   JURISDICTION  :    TERRITORIAL   LIMITS.  [§  172. 

On  the  21st  of  February,  1891,  Lord  Salisbury  replied  to  this  note, 
controverting   the   argument    advanced    in   it   as   to 

greemen     on   a    ^j^^  meaning  of  the  treaties  of  1824  and  1825,  and  pro- 
modus  Vivendi.  °  .  .  .  . '  '■ 

loosing  certain  modifications  of  the  questions  to  be 

submitted  to  arbitration." 

Mr.  Blaine  rejoined  on  the  14th  of  April.''  Meanwhile  the  two  Gov- 
ernments had  entered  upon  the  consideration  of  a  modus  mvendi, 
which  had  been  suggested  by  Mr.  Blaine  under  the  instructions  of  the 
President,  for  the  suspension  or  restriction  of  sealing  pending  the 
result  of  the  arbitration  of  the  questioiis  at  issue  between  the  two  Gov- 
ernments. This  correspondence  continued  till  the  15th  of  June,  1891, 
when  a  modus  rirendi  was  agreed  upon.^  By  this  agreement  Great 
Britain  undertook  to  prohibit,  until  the  following  May,  the  killing  of 
seals  by  British  subjects  in  that  part  of  Bering  Sea  lying  eastward  of 
the  line  of  demarcation  described  in  the  treaty  between  the  United 
States  and  Russia  of  18G7,  and  the  United  States  to  prohibit  the  like 
Ivilling  of  seals  by  citizens  of  the  United  States  in  the  same  part  of 
Bering  Sea  and  on  the  islands  thereof,  in  excess  of  7,500  be  taken 
on  the  islamcls  for  the  subsistence  and  care  of  the  natives.  It  was 
further  agreed  that,  in  order  to  facilitate  such  inquiries  as  Her 
Majesty's  Government  might  desire  to  make  with  a  view  to  the  pres- 
entation of  their  case  before  arbitrators,  suitable  persons  designated 
by  Great  Britain  should  be  permitted  at  any  time,  upon  application, 
to  visit  and  remain  on  the  seal  islands  during  the  pending  season  for 
that  purpose.'' 

This  agreement  was  at  once  proclaimed  by  the  President,  "  to  the 
end  that  the  same  and  every  part  thereof  might  be  observed  and  ful- 
filled with  good  faith  by  the  United  States  of  America  and  the  citizens 

o  For.  Rel.  1891,  542.  In  January.  1891.  a  motion  was  made  before  the 
Supreme  Court  of  the  United  States  for  leave  to  file  an  application  for  a  writ 
of  prohibition  to  the  district  court  of  the  United  States  for  the  district  of 
Alaslva.  to  restrain  the  enforcement  of  the  sentence  of  condemnation  and  for- 
feiture entered  on  Septeml)er  19.  1887,  in  the  case  of  the  W.  P.  Saj/iranI,  one  of 
tlie  British  ("olumhian  sealers,  on  the  fifound  that  the  court  was  without  juris- 
diction in  tlie  premises.  Leave  having  been  granted,  the  application  was  duly 
filed.  Tlie  petitioner  for  the  writ  was  one  Cooiier.  the  owner  of  the  Sayicard, 
but  with  liis  petition  a  suggestion  was  presented  by  Sir  .John  Thompson, 
attorney-general  of  Canada,  with  the  knowledge  and  approval  of  the  Imperial 
Government,  rniuesting  the  aid  of  the  court  for  the  claimant,  a  British  subject. 
The  case  was  argued  on  November  9  and  10,  1891,  and  was  decided  February 
29,  1892.  the  day  on  which  the  treaty  of  arbitration  was  signed.  The  applica- 
tion was  denied  on  technical  grounds,  relating  to  the  law  and  practice  governing 
the  is.suance  of  writs  of  prohibition.      (//(  re  Cooper.  14.'i  U.  S.  472.) 

''For.  Rel.  1891,  .'.48. 

"^  For.  Rel.  1891,  .")2-."»70.  See  President  Harrison's  annual  message  of  Dec.  9. 
1891.     See,  also.  North  American  Commercial  Co.  v.  United  States,  171  U.  S.  110. 

<»  For.  Rel.  1891,  570. 


§  l'^.]  SEAL    FISHERIES:    BERING    SEA.  905 

thereof."  It  was  put  in  force  in  (xreat  Britain  by  an  order  in  council, 
issued  under  an  act  passed  on  .Tune  11,  ISDl,  "  to  enable  Her  Majesty, 
by  order  in  council,  to  make  special  provision  for  prohibiting  the 
catching  of  seals  in  Bering's  Sea  by  Her  Majesty's  subjects  during 
the  period  named  in  the  order.'' " 

A  treaty  of  arbitrati(m  was  signed  at  Washington,  February  21), 
lSU-2.  By  the  first  article  of  the  treaty  it  was  provided 
Treaty  of  arbitra-  ^j^.^^  ^j^g  questions  which  had  arisen  between  the  two 
(jovernments  "  concerning  the  jurisdictional  rights  of 
the  United  States  in  the  waters  of  Bering's  Sea,  and  concerning  also 
the  preservation  of  the  fur  seal  in,  or  habitually  resorting  to,  the  said 
sea,  and  the  rights  of  tlK>  citizens  and  subjects  of  either  country  as 
regards  the  taking  of  fur  seal  in,  or  habitually  resorting  to,  the  said 
waters,"  should  l)e  submitted  to  a  tribunal  of  seven  arbitrators,  two 
to  be  named  by  the  President  of  the  United  States,  two  by  Her 
Britannic  Majesty,  and  one  each  by  the  President  of  France,  the  King 
of  Italy,  and  the  King  of  Sweden  and  Norway.  The  questions  sub- 
jnitted  to  arbitration  were  defined  by  Articles  VI.  and  VII.  By 
Article  VI.  five  questions  were  submitted  for  specific  judgment. 
Article  VII.  referred  to  the  arbitrators  the  subject  of  concurrent 
regulations,  in  case  their  judgment  on  the  five  questions  in  the  pre- 
ceding article  should  be  adverse  to  the  United  States.  The  text  of 
Article  VI.  and  VII.  is  as  follows : 

"Article  VI.  In  deciding  the  matter  submitted  to  the  arbitrators, 
it  is  agreed  that  the  following  five  points  shall  be  submitted  to  them, 
in  order  that  their  award  shall  embrace  a  distinct  decision  upon  each 
of  said  five  points,  to  wit : 

"  1.  AVhat  exclusive  jurisdiction  in  the  sea  now  known  as  the 
Bering's  Sea.  and  what  exclusive  rights  in  the  seal  fisheries  therein, 
did  Russia  assert  and  exercise  ])rior  and  up  to  the  time  of  the  cession 
of  Alaska  to  the  United  States? 

"  2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal  hsh- 
eries  recognized  and  conceded  by  (xreat  Britain? 

'•  r^.  AVas  the  body  of  water  now  known  as  the  Bering's  Sea  in- 
cluded in  the  ])hrase  '  Pacific  Ocean,'  as  used  in  the  treaty  of  1825 
between  (Ireat  Britain  and  Kussia  :  and  Avhat  rights,  if  any,  in  the 
liering's  Sea  were  held  and  exclusively  exercised  by  Russia  aftei" 
said  treaty? 

"•  4.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction,  and  as  to  the 
seal  fisheries  in  Bering's  Sea  east  of  the  water  boundary,  in  the 
treaty  between  the  United  States  and  Russia  of  the  30th  March, 
lcS()7,  i)ass  unimpaired  to  the  United  States  undei'  that  treaty? 

a  Case  of  tli<»  United  States,  Appeiulix  I.  :V2'A,  Fur-Seal  Arbitration,  II. 


V)06  NATIONAL   JURISDICTION  :    TERRITORIAL   LIMITS.  [§  172. 

••  5.  Has  the  United  States  any  right,  and  if  so.  what  right  of  pro- 
tection or  property  in  the  fur  seals  frequenting  the  islands  of  the 
United  States  in  Bering  Sea  when  such  seals  are  found  outside  the 
ordinary  three-mile  limit? 

"Article  VII.  If  the  determination  of  the  foregoing  questions  as 
to  the  exclusive  jurisdiction  of  the  United  States  shall  leave  the  sub- 
ject in  such  position  that  the  concurrence  of  Great  Britain  is  neces- 
sary to  the  establishment  of  regulations  for  the  proper  protection 
and  i)reservation  of  the  fur-seal  in,  or  habitually  resorting  to,  the 
Bering  Sea.  the  arbitrators  shall  then  determine  what  concurrent 
Regulations  outside  the  jurisdictional  limits  of  the  respective  Govern- 
ments are  necessary,  and  over  what  waters  such  regulations  should 
extend,  and  to  aid  them  in  that  determination  the  report  of  a  joint 
commission  to  be  appointed  by  the  respective  Governments  shall  be 
laid  before  them,  with  such  other  evidence  as  either  Government  may 
submit. 

"  The  high  contracting  parties  furthermore  agree  to  cooperate  in 
securing  the  adhesion  of  other  powers  to  such  regulations." " 

Article  VIII.  of  the  treaty  related  to  damages,  which  had  formed 
a  subject  of  much  difficulty  and  occasioned  not  a  little 

am-    ^|p].^^,  -j^  ^j^g  negotiations.     By  this  article  it  was  pro- 
ages.  .     '  ^     .  •    .  .        ,  . 

vided    that    the   high    contracting   parties,   '*  havmg 

found  themselves  unable  to  agree  upon  a  reference  which  shall  include 

the  question  of  the  liability  of  each  for  the  injuries  alleged  to  have 

been  sustained  by  the  other,  or  by  its  citizens,  in  connection  with  the 

claims  presented  and  urged  by  it,  either  may  submit  to  the  arbitrators 

any  question  of  fact  involved  in  said  claims  and  ask  for  a  finding 

thereon,  the  question  of  the  liability  of  either  Government  upon  the 

facts  found  to  be  the  subject  of  further  negotiation." 

On  the  18th  of  April,  1892,  a  modus  rlrendi  was  concluded  in  the 

form  of  a  convention.     In  its  first,  second,  third,  and 

New  modus  viven-     fourth    articles   it    embodied    the   provisions   of   the 

, ,  modus  rirendi  of  1891.     By  its  fifth  article  it  intro- 

tion  of  damages. 

duced  the  subject  of  damages,  which  had  been  post- 
poned by  the  treaty  of  arbitration.     This  article  read  as  follows: 

"Article  V.  If  the  result  of  the  arbitration  be  to  affirm  the  right 
of  Bi'itish  sealers  to  take  seals  in  Bering  Sea  within  the  bounds 
claimed  by  the  United  States,  under  its  purchase  from  Russia,  then 
compensation  shall  l^e  made  by  the  United  States  to  Great  Britain 


a  It  was  agreed  that  any  regulations  made  by  the  arbitrators  within  the 
Itowers  given  them  by  this  article  were  ()l)ligatory  on  the  two  Governments,  and 
were  not  merely  reconmiendations  which  it  was  oi>en  to  either  Government  to 
disregard.  ( Mr.  Wharton.  Act.  Sec.  of  State,  to  Sir  .7.  Pauneefote,  Brit.  min. 
March  C.  ISa'',.  MS.  Notes  to  (ir.  Br.  XXII.  2").  in  reply  to  a  note  of  Sir  J. 
Pauneefote  of  March  2.) 


§  1T2.]  SEAL   FISHERIES:    BERING    SEA.  907 

(for  the  use  of  her  subjects)  for  jibstaiiiino;  from  the  exercise  of  that 
right  diiriutr  the  pendency  of  the  arbitration  upon  the  basis  of  such 
a  regulated  and  limited  catch  or  catches  as  in  the  opinion  of  the  arbi 
trators  might  have  been  taken  without  an  undue  diminution  of  the 
seal-herds;  and.  on  the  other  hand,  if  the  result  of  the  arbitration 
shall  be  to  deny  the  right  of  British  sealers  to  take  seals  within  the 
said  waters,  then  compensation  shall  be  made  by  (Ireat  Britain  to  the 
United  States  (for  itself,  its  citizens  and  lessees)  for  this  agreement  to 
limit  the  island  catch  to  seven  thousand  five  hundred  a  season,  upon 
the  basis  of  the  difference  between  this  number  and  sucli  larger  catch 
as  in  the  opinion  of  the  arbitrators  might  have  been  taken  Avithout  an 
undue  diminution  of  the  seal-herds. 

''  The  amount  awarded,  if  any.  in  either  case  shall  be  such  as  under 
all  the  circumstances  is  just  and  equitable,  and  shall  be  promptly 
paid." 

The  treaty  of  arbitration  was  apj^roved  by  the  Senate  of  the  United 

States  on  March  29,  1892,  and  the  convention  for  the 

Constitution  of  the    renewal  of  the  modus  viretuU  on  the  10th  of  April. 

^  ,.  Both  instruments  were  ratified  bv  the  President  on 

tration.  i       /•  ■  .  ".  . 

the  22d  of  April,  and  tlieir  ratifications  were  ex- 
changed on  the  7th  of  May.  On-the  9th  of  May  they  were  duly  pro- 
claimed." As  American  arbitrators  the  President  of  the  United 
States  named  the  Hon.  John  M.  Harlan,  a  justice  of  the  Supreme 
Court  of  the  United  States,  and  the  Hon  John  T.  ^Morgan,  a  Senator 
of  the  United  States.  On  the  part  of  (rreat  Britain  the  arbitrators 
named  were  the  Right  Hon.  Lord  Hannen.  of  the  high  court  of  ap- 
peal, and  the  Hon.  Sir  John  Thompson,  minister  of  justice  aild 
attorney -general  for  Canada.  As  neutral  arbitrators  the  President 
of  France  named  the  Baron  Alphonse  de  Courcel,  a  Senator  and 
ambassador  of  France:  the  King  of  Italy,  the  Marquis  Emilio  Vis- 
conti  Venosta.  a  Senator  of  the  Kingdom  and  formerly  minister  of 
foreign  affairs:  and  the  King  of  Sweden  and  Norway,  Mr.  (rregers 
Gram,  a  ministei'  of  state.''  As  agent  the  United  States  appointed 
the  Hon.  John  W.  Foster,  who  subsecjuently  held  the  office  of  Secre- 
tary of  State.  The  British  (iovernment  dtsignated  as  its  agent  the 
Hon.  Charles  H.  Tupper,  minister  of  murine  and  fisheries  for  the 

«  See  President  Harrison's  amiual  message  of  Dec.  <i,  181)2. 

^  Tlu'  treaty  provided  that  the  foreij;n  powers  desijjnated  to  select  arbitrators 
shoidd  l>e  re»|uested  to  choose,  if  jtossihle.  .iurists  aciiuainted  with  the  English 
languajje.  The  object  of  this  stiimhition  was  merely  to  facilitate  the  disposi 
lion  of  the  business.  (Mr.  Wharton,  .\ct.  Sec.  of  State,  to  Mr.  Vignaud,  charg*'', 
.May  27, 1!M>2.  MS.  Inst.  France,  XXII.  W'M  ;  Mr.  Wliarton.  Acting  Sec.  of  State,  to 
Mr.  Coolidge.  niin.  to  France,  tel.  June  2:!,  1S!>2.  .MS.  Inst.  France,  XXII.  ."UQ : 
Mr.  Foster.  Sec.  of  State,  to  -Mr.  Coolidge.  niin.  to  France,  tel.  July  ."»,  18112.  .MS. 
Inst.  France.  XXII.  :!.">4 ;  Mr.  Uhl.  .Vet.  Sec.  of  State,  to  Mr.  Eustls,  anib.  to 
France,  June  20,  1894,  MS.  Inst.  France,  XXII.  057.) 


908  NATIONAL   JURISDICTION  :    TERRITORIAL   LIMITS.  [§  172. 

Dominion  of  Canada,  while  Mr.  R.  P.  Maxwell,  of  the  foreign  office, 
acted  as  assistant  agent  and  Mr.  Charles  Russell  as  solicitor. 

As  counsel  for  the  United  States  there  were  retained  the  Hon. 
Edward  J.  Phelps.  Mr.  James  C.  Carter,  the  Hon.  Henry  W.  Blodg- 
ett.  and  Mr.  F.  R.  Coudert.  ^Ir.  Robert  Lansing  and  Mr.  William 
AVilliams  acted  with  them  as  associate  counsel.  Counsel  on  the  part 
of  Great  Britain  were  Sir  Charles  Russell.  Q.  C.  M.  P..  Her  Majesty's 
attorney-general :  Sir  Richard  AVebster,  Q.  C  M.  P.,  and  ]Mr.  Chris- 
topher Robinson.  Q.  C  of  Canada ;  and  they  were  assisted  by  Mr. 
H.  M.  Box.  barrister  at  law." 

In  the  counter  case  of  the  United  States  reference  was  made  to 
'■  Russia's  action  during  the  sunmier  of  1892,"  as  the  first-known 
instance  of  the  warning  or  seizure  of  vessels  by  that  Government  for 
killing  seals  in  the  waters  of  Bering  Sea.  It  seems  that  there  was 
one  seizure  by  Russia,  or  under  Russian  authority,  of  a  foreign  vessel 
for  taking  seals  in  Bering  Sea  prior  to  the  cases  in  1892.  This  was 
the  case  of  the  British  Columbian  schooner  Araunah  in  1888.  The 
master  of  the  schooner  alleged  that  she  was  seized  off  Copper  Island 
about  six  miles  from  the  nearest  land.  The  captors  alleged  that  she 
was  nearer.  It  appeared,  however,  that  the  crew  of  the  schooner  were 
carrying  on  their  operations  in  canoes  between  the  schooner  and  the 
land,  and  it  was  affirmed  that  two  of  the  canoes  were  within  half  a 
mile  of  the  shore.  Lord  Salisbury  said  Her  Majesty's  Government 
were  '"  of  ()pini(m  that,  even  if  the  Araunah  at  the  time  of  the  seizure 
Avas  herself  outside  the  three-mile  territorial  limit,  the  fact  that  she 
was.  by  means  of  her  i)oats,  carrying  on  fishing  within  Russian  waters 
without  the  i>rescribed  license  warranted  her  seizure  and  confiscation 
according  to  the  i)r()visions  of  the  municipal  law  regulating  the  use  of 
tiiose  waters."  The  "  {provisions  of  the  municipal  law  "  referred  to 
i)y  Lord  Salisbury  wei-e  the  regulations  relating  to  "trading,  hunt- 
ing, and  fishing"  "on  the  Russian  coast  or  islands  in  the  Okhotsk 
iuid  P)ering  seas,  or  on  the  northeastern  coast  of  Asia,  or  within  their 
sea  l)oundarv  line."  wliich  were  published  in  San  Francisco  and  in 
Ja])ane>e  ports  in  ISSl  and  1882.''  These  regulations  were  made  the 
-ubject  of  iiKjuiry  by  the  Government  of  the  United  States  at  the 
time  througli  its  diplomatic  i'ei)resentative  at  St.  Petersl)urg.  and  the 
correspondence  was  published  in  the  volume  of  Foreign  R(^lations  for 
1S82.  M.  de  (iiers.  the  Russian  minister  of  foreign  affairs,  in  a  note 
of  May  S  (-JO).  lS.s-2.  stated  that  the  regulations  extended  "strictly 
to  tlic  territoiial  waters  of  Russia  onlv." '"     The  vessel  seized  bv  the- 


"  As  to  tlic  cMscs  .111(1  countfr  cjiscs  of  tlii'  two  (lovcnuiit'iits.  ami  the  argii- 
iiKMits  of  conns*'].  SIM'  Moore.  Int.  Arbitrations.  I.  ,sm(>-,S2:?.  .S2C.-8-J7.  827-004. 

''  i'.hu'  l'.<M)i<  ■•  Uussia  No.  1    (  l.SiMM." 

'  For.  \W\.  ISS-J.  ]i]).  447— tr.l.  4.">l*~4r.4.  Tlic  inqniry  of  tln'  United  States 
relatcil  to  ((xl  tishinf::  in  tlie  case  of  tlie  Arauiaih  M.  de  Giers  stated  that  the 
regulations  governed  sealing  also. 


§  172.]  SEAL    FISHERIES  :    BERING    SEA.  909 

Russian  authoritios  in  1892  weiv  six  in  number."  In  regard  to  four 
of  them  the  evidence  was  conclusive  that  their  canoes  were  takiuir 
seals  withm  the  three-mile  limit.  In  regard  to  the  other  two,  though 
it  was  said  that  the  "moral  evidence"  of  the  same  fact  was  equally 
conclusive,  yet  as  the  canoes  were  not  actually  seen  Avithin  territorial 
waters  the  Russian  (iovernment  undertook  to  make  indemnity.''  On 
February  12  (24),  189:^,  however,  the  Russian  minister  of  foreign 
affairs,  in  response  to  an  inquiry  made  in  behalf  of  Canadian  sealers 
as  to  the  limits  Avithin  Avhich  they  would  be  permitted  to  carry  on 
their  operations  during  that  year,  wrote  to  the  British  ambassador 
that  "  the  insufficiency  of  the  strict  application  of  general  rules  of 
international  hnv  to  this  matter  "  was  admitted  in  the  negotiations 
between  Russia,  (ireat  Britain,  and  the  United  States  in  1888,  and 
that  the  necessity  for  exceptional  measures  had  been  "  more  lately 
confirmed  by  the  Anglo-American  agreement  of  1891,"  Avhicli  had 
placed  Russian  interests  in  an  "  absolutely  abnormal  and  exceptional 
])osition."  "  The  prohibition  of  sealing  within  the  limits  agreed 
upon  in  the  modus  viceiuli  of  1891  has,  in  fact,''  said  the  Russian 
minister  of  foreign  affairs,  "  caused  such  an  increase  in  the  destruc- 
tion of  seals  on  the  Russian  coast  that  the  ccmiplete  disappearance  of 
these  animals  would  be  only  a  question  of  a  short  time  unless  effica- 
cious measures  for  their  protection  were  taken  without  delay."  On 
these  grounds  he  stated  that  for  the  ensuing  season,  and  pending  the 
ado])tion  of  international  regulations,  Russia  would,  as  a  measure  of 
"  legitimate  self-defense,"  prohibit  sealing  Avithin  ten  miles  of  all  her 
coasts,  and  Avithin  thirty  miles  of  the  Commander  Islands  and  Robben 
Island.''     The  British  GoA^ernment  declined  to  admit  that  Russia  had 

.  "  When  those  seizures  of  1892  wore  referred  to  in  the  counter  cnse  of  the 
T'nited  States,  the  pi-ecise  facts  were  not  known.  The  (lii)loniati('  corresiMind- 
ence  was  puhlislied  in  (Jreat  Kritain  wiule  the  tribunal  of  arbitration  was  in 
session.     See  Moore,  Int.  Arbitrations,  I.  911. 

''I'.hie  P.ook  "Russia  No.  3  (1893). "'  See  Mr.  Wliite,  niin.  to  Russia,  to  Mr. 
Greshani,  Sec.  of  State,  .Tune  17,  1893,  MSS.  Dept.  of  State. 

-"In  explanutioTi  of  the  j;;rounds  of  these  measures,  the  minister  of  foreign 
affairs  said  :  "  With  regard  to  the  ten-mile  zone  along  the  coast,  these  measures 
will  be  .justified  by  the  fact  that  vessels  engaged  in  the  seal  fishery  .generally 
take  up  iH)sitlons  at  a  distance  of  from  seven  to  nine  miles  from  the  coast,  while 
their  boats  and  crews  engage  in  sealing  both  on  the  <-oast  itself  and  in  terri- 
torial waters.  As  soon  as  a  cruiser  is  sighted,  the  ships  take  to  the  open  sea 
and  try  to  recall  their  boats  from  territorial  waters.  AVith  i-egard  to  the  thirty- 
mile  zone  around  the  islands,  this  measure  is  taken  wifii  a  vi<'w  to  protect  tlie 
banks,  known  by  the  sealers  as  '  sealing  gnmnds,'  which  extend  round  the 
islands,  and  are  not  shown  with  sxifficient  accuracy  on  ma]»s.  These  banks  are 
frecpiented  during  certain  seasons  by  the  female  seals,  the  killing  of  which  is 
I)articular]y  destructive  to  the  seal  species  at  the  time  of  year  when  the  females 
are  su<-kllng  their  young,  or  go  to  seek  food  on  the  banks  known  as  '  sealing 
grounds.' "     ' 


910  NATIONAL    jurisdiction:    TERRITORIAL    LIMITS.  [§172. 

a  ritrht  to  extend  her  jurisdiction  over  British  vessels  outside  the 
usual  territorial  limits,  but  in  order  "  to  afford  all  reasonable  and 
letritinuite  assistance  to  Russia  in  the  existing  circumstances,"' 
expressed  a  readiness  at  once  to  enter  into  an  agreement  with  the 
Imperial  (xovernment  for  the  enforcement  of  the  protective  zones 
proposed  in  the  note  of  the  minister  of  foreign  alTairs.  Such  an 
agreement  Avas  concluded  in  May.  1893." 

August  15,  1893,  the  tribunal  of  arbitration  made 
^^^  ■  the  following  award  : 

"Award  of  f/ie  Tribunal  of  Arbitration  constituted  under  the  Treaty 
concluded  at  Washington,  the  29th  of  February  1892,  between  the 
United  /States  of  America  and  Her  Majesty  the  Queen  of  the  United 
KiiKjdoni  of  Great  Britain  and  Ireland. 

"Whereas  by  a  Treaiy  between  the  United  States  of  America  and 
Great  Britain,  signed  at  Washington.  February  29,  1892.  the  ratifica- 
tions of  which  by  the  Governments  of  the  two  Countries  were  ex- 
changed at  London  on  May  the  7'**.  1892.  it  was,  amongst  other  things, 
agreed  and  concluded  that  the  (piestions  which  had  arisen  between 
the  Government  of  the  United  States  of  America  and  the  Government 
of  Her  Britannic  Majesty,  concerning  the  jurisdictional  rights  of  the 
United  States  in  the  waters  of  Bering's  Sea.  and  cxmcerning  also  the 
preservation  of  the  fur-seal  in  or  habitually  resorting  to  the  said  sea, 
and  the  rights  of  the  citizens  and  subjects  of  either  Country  as 
regards  the  taking  of  fur-seals  in  or  habitually  resorting  to  the  said 
waters,  should  be  submitted  to  a  Tribunal  of  Arbitration  to  be  com- 
})osed  of  seven  Arbitrators,  who  should  lie  appointed  in  the  following 
manner,  that  is  to  say:  two  should  be  named  by  the  President  of  the 
United  States:  two  should  be  named  by  Her  Britanic  Majesty:  His 
Excellency  the  President  of  the  French  Republic  should  be  jointly 
i'e(]uested  \)\  tlie  High  Contracting  Parties  to  name  one:  His  Majesty 
tlie  King  of  Italy  should  be  so  refpiested  to  name  one:  His  Majesty 
the  King  of  Sweden  and  Norway  should  Ik'  so  recpiested  to  name 
one:  the  st>ven  Arbitrators  to  be  so  named  should  1k»  jurists  of  dis- 
tinguished rejjutation  in  their  respective  Countries,  and  the  selecting 
Powers  shouhl  l)e  rcipiested  to  choose,  if  j^ossible.  jurists  who  are 
ac([uainted  with  the  English  language: 

••And  whereas  it  was  further  agreed  l)y  article  II  of  the  said  Treaty 
that  the  Arbitrators  should  meet  at  Paris  within  twenty  days  after 
the  delivery  of  the  Counter-Cases  mentioned  in  article  IV,  and  should 
|)roce('d  impartially  and  carefully  to  examine  and  decide  the  questions 
which  had  been  or  should  Im'  laid  before  them  as  in  the  said  Treaty 
provided  on  the  j^art  of  the  Governments  of  the  Ignited  States  and  of 


"  Klur  Hook  ■•  Kussia  No.  1    (IS'.*:?)."" 


§  1T2.]  SEAL    fisheries:    BERING    SEA.  911 

Her  Britannic  Majesty  respectively,  and  that  all  (questions  considered 
by  the  Tribunal,  including  the  final  decision,  should  be  determined 
by  a  majority  of  all  the  Arbitrators; 

'•And  Avhereas  by  article  VI  of  the  said  Treaty,  it  was  further  pro- 
vided as  follows:  'In  deciding  the  matters  submitted  to  the  said 
Arbitrators,  it  is  agreed  that  the  following  five  points  shall  be  sub- 
mitted to  tliem  in  order  that  their  award  shall  embrace  a  distinct 
decision  upon  each  of  said  five  points,  to  wit : 

"' '  1.  What  exclusive  jurisdiction  in  the  sea  now  known  as  the 
Bering's  Sea,  and  what  exclusive  rights  in  the  seal  fisheries  therein, 
did  Russia  assert  and  exercise  prior  and  u])  to  the  time  of  the  cession 
of  Alaska  to  the  United  States? 

"  '  2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal  fish- 
eries recognized  and  conceded  by  Great  Britain? 

"■  *  8.  A^"as  the  body  of  water  now  known  as  the  Bering's  Sea 
included  in  the  phrase  Pacific  Ocean,  as  used  in  the  Treaty  of  1825 
between  Great  Britain  and  Russia;  and  what  rights,  if  any,  in  the 
Bering's  Sea  Avere  held  and  exclusiveh^  exercised  by  Russia  after 
said  Treaty  ? 

"''4.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction  and  as  to 
the  seal  fisheries  in  Bering's  Sea  east  of  the  water  boundary,  in  the 
Treaty  between  the  United  States  and  Russia  of  the  30"'  of  March 
18()7,  pass  unimpaired  to  the  United  States  under  that  Treaty? 

•' '  5.  Has  the  United  States  any  right,  and  if  so,  what  right  of  i)ro- 
tection  or  property  in  the  fur-seals  frequenting  the  islands  of  the 
United  States  in  Bering  Sea  when  such  seals  are  found  outside  the 
ordinary  three-mile  limit  ?  ' 

"And  whereas,  by  article  VII  of  the  said  Treaty,  it  was  further 
agreed  as  follows : 

•' '  If  the  determination  of  the  foregoing  questions  as  to  the  exclu- 
sive jurisdiction  of  the  United  States  shall  leave  the  subject  in  such 
position  that  the  concurrence  of  Great  Britain  is  necessary  to  the 
establishment  of  Regulations  for  the  proper  protection  and  preserva- 
tion of  the  fur-seal  in,  or  habitually  resorting  to,  the  Behring  Sea. 
the  Arl)itrators  shall  then  determine  what  concurrent  Regulations, 
outside  the  jurisdictional  limits  of  the  respective  Governments,  are 
necessary,  and  over  what  waters  such  Regulations  should  extend : 

"'The  High  Contracting  Parties  furthermore  agree  to  cooperate 
in  securing  the  adhesion  of  other  Powers  to  such  Regulations;  ' 

"And  whereas,  by  article  VIII  of  the  said  Treaty,  after  reciting 
that  the  High  Contracting  Parties  had  found  themselves  unable  to 
agree  upon  a  reference  which  should  include  the  question  of  the  lia- 
bility of  each  for  the  injuries  alleged  to  have  been  sustained  by  the 
other,  or  by  its  citizens,  in  connection  Avith  the  claims  presented  and 
urged  by  it,  and  that  '  they  were  solicitous  that  this  subordinate  ques- 


912  NATIONAL  jurisdiction:  territorial  limits.        [§  l"*"— 

tioii  should  not  interrupt  or  longer  delay  the  submission  and  deter- 
mination of  the  main  questions,'  the  High  Contracting  Parties  agreed 
that  '  either  of  them  might  submit  to  the  Arbitrators  any  question  of 
fact  involved  in  said  claims  and  ask  for  a  finding  thereon,  the  qiPes- 
tion  of  the  liability  of  either  Government  upon  the  facts  found,  to 
be  the  subject  of  further  negociation;  ' 

•"And  Avhereas  the  President  of  the  United  States  of  America 
named  the  Honourable  John  M.  Harlan,  Justice  of  the  Supreme 
Court  of  the  United  States,  and  the  Honourable  John  T.  Morgan, 
Senator  of  the  United  States,  to  be  two  of  the  said  Arbitrators,  and 
Her  Britannic  Majesty  named  the  Right  Honourable  Lord  Hannen 
and  the  Honourable  Sir  John  Thompson.  Minister  of  Justice  and 
Attorney  (leneral  for  Canada,  to  be  two  of  the  said  Arbitrators,  and 
His  Excellency  the  l*resident  of  the  French  Republic  named  the 
Baron  de  Courcel.  Senator,  Ambassador  of  France,  to  be  one  of  the 
said  Arbitrators,  and  His  Majesty  the  King  of  Italy  named  the 
Manjuis  Emilio  Visconti  Venosta,  former  Minister  of  Foreign  Affairs 
and  Senator  of  the  Kingdom  of  Italy,  to  be  one  of  the.  said  Arbitra- 
tors, and  His  Majesty  the  King  of  Sweden  and  Norway  named  Mr. 
(xregers  (Jram,  ^linister  of  State,  to  be  one  of  the  said  Arbitrators; 

"And  whereas  "We.  the  said  Arbitrators,  so  named  and  appointed, 
having  taken  upon  ourselves  the  burden  of  the  said  arbitration,  and 
having  duly  met  at  I*aris.  proceeded  impartially  and  carefully  to 
examine  and  decide  all  the  questions  submitted  to  us  the  said  Arbi- 
trators, under  the  said  Treaty,  or  laid  before  us  as  provided  in  the 
said  Treaty  on  the  i)art  of  the  Governments  of  Her  Britannic  Majesty 
and  the  United  States  respectively: 

••  Now  we.  the  said  Arbitrators,  having  impartially  and  carefully 
examined  the  said  questions,  do  in  like  manner  by  this  our  Award 
decide  and  determine  tlie  said  (piestions  in  manner  following,  that 
is  to  say,  Ave  deckle  and  determine  as  to  the  five  jjoints  mentioned  in 
article  VI  as  to  which  our  Award  is  to  embrace  a  distinct  decision 
upon  each  of  them  : 

"As  to  the  first  of  the  said  five  points,  AVe,  the  said  Baron  de 
Courcel.  Mr.  Justice  Harlan.  Lord  Hannen,  Sir  John  Thompson, 
Manjuis  Visconti  Venosta  and  Mr.  Gregers  Gram,  being  a  majority' 
of  the  said  Arbitrators,  do  decide  and  determine  as  follows: 

"  By  the  Ukase  of  1821.  Russia  claimed  jurisdiction  in  the  sea 
now  known  as  the  Behring's  Sea,  to  the  extent  of  100  Italian  miles 
from  the  coasts  and  islands  belonging  to  her,  but,  in  the  course  of 
the  negotiations  which  led  to  the  conclusion  of  the  Treaties  of  1824 
with  tlie  United  States  and  of  18-25  with  (Jreat  Britain,  Russia  ad- 
mitted that  her  jurisdiction  in  the  said  sea  should  be  restricted  to 
the  reach  of  cannon  shot  from  shore,  and  it  appears  that,  from  that 
time  up  to  the  time  of  the  cession  of  Alaska  to  the  United  States, 


§  1<^2.]  SEAL    FISHERIES:    BERING    SEA.  913 

Russia  never  asserted  in  fact  or  exercised  any  exclusive  jurisdiction 
in  Behrin^'s  Sea  or  any  exclusive  rights  in  the  seal  fisheries  therein 
beA'ond  the  ordinary  limits  of  territorial  waters. 

"As  to  the  second  of  the  said  five  points.  We,  the  said  Baron  de 
Courcel,  Mr.  Justice  Harlan,  Lord  Hannen,  Sir  John  Thompson, 
Marquis  Visconti  Yenosta  and  Mr.  (irregers  Gram,  being  a  majority 
of  the  said  Arbitrators,  do  decide  and  determine  that  Great  Britain 
did  not  recognize  or  concede  any  claim,  upon  the  part  of  Russia,  to 
exclusive  jurisdiction  as  to  the  seal  fisheries  in  Behring  Sea,  outside 
of  ordinary  territorial  waters. 

"As  to  the  third  of  the  said  five  points,  as  to  so  much  thereof  as 
requires  us  to  decide  whether  the  body  of  water  now  known  as  the 
Behring  Sea  was  included  in  the  phrase  '  Pacific  Ocean  '  as  used  in 
the  Treaty  of  1825  between  Great  Britain  and  Russia,  We,  the  said 
Arbitrators,  do  unanimously  decide  and  determine  that  the  bodv  of 
water  now  known  as  the  Behring  Sea  was  included  in  the  phrase 
•  Pacific  Ocean  '  as  used  in  the  said  Treat3\ 

"And  as  to  so  much  of  the  said  third  point  as  requires  us  to  decide 
what  rights,  if  any,  in  the  Behring  Sea  were  held  and  exclusively  ex- 
ercised by  Russia  after  the  said  Treaty  of  18-25,  We.  the  said  Baron  de 
Courcel,  Mr.  Justice  Harlan,  Lord  Hannen.  Sir  John  Thompson, 
Marquis  Visconti  Venosta  and  Mr.  (iregers  Gram,  being  a  majority 
of  the  said  Arbitrators,  do  decide  and  determine  that  no  exclusive 
rights  of  jurisdiction  in  Behring  Sea  and  no  exclusive  rights  as  to 
the  seal  fisheries  therein,  were  held  or  exercised  by  Russia  outside  of 
ordinary  territorial  waters  after  the  Treaty  of  1825. 

"As  to  the  fourth  of  the  said  five  points.  We.  the  said  Arbitrators, 
do  unanimously  decide  and  determine  that  all  the  rights  of  Russia  as 
to  jurisdiction  and  as  to  the  seal  fisheries  in  Behring  Sea.  east  of  the 
water  lx)undary,  in  the  Treaty  between  the  [7nited  States  and  Russia 
of  the  SO^*"  March  1867,  did  pass  unimpaired  to  the  United  under  the 
said  Treaty. 

"As  to  the  fifth  of  the  said  five  points.  We,  the  said  Baron  de 
Courcel,  Lord  Haimen,  Sir  John  Thompson,  Marquis  Visconti 
Venosta  and  Mr.  Gregers  Gram,  being  a  majority  of  the  said  arbi- 
trators, do  decide  and  determine  that  the  United  States  has  not  any 
right  of  protection  or  property  in  the  fur-seals  frequenting  the 
islands  of  the  L^nited  States  in  Behring  Sea.  when  such  seals  are 
found  outside  the  ordinary  three-mile  limit. 

"And  whereas  the  aforesaid  determination  of  the  foregoing  ques- 
tions as  to  the  exclusive  jurisdiction  of  the  United  States  mentioned 
in  Article  VI  leaves  the  subject  in  such  a  position  that  the  concur- 
rence of  Great  Britain  is  necessary  to  the  establishment  of  Regula- 
tions for  the  proper  protection  and  preservation  of  the  fur-seal  in  or 

H.  Doc.  551 58 


914  NATIONAL  jurisdiction:  territorial  limits.        [§  1T2. 

habitually  resorting  to  the  Behring  Sea,  the  Tribunal  having  decided 
by  a  majority  as  to  each  Article  of  the  following  Regulations,  We, 
the  said  Baron  de  Conrcel,  Lord  Hannen,  Marquis  Visconti  Venosta 
and  Mr.  (irogers  (xrani,  assenting  to  the  whole  of  the  nine  Articles 
of  the  following  regulations,  and  being  a  majority  of  the  said  Arbi- 
trators, do  decide  and  determine  in  the  mode  provided  by  the  Treaty, 
that  the  following  concurrent  Regulations  outside  the  jurisdictional 
limits  of  the  resjjective  Governments  are  necessary  and  that  they 
should  extend  over  the  waters  hereinafter  mentioned,  that  is  to  say : 

''  Article  1. 

"  The  Governments  of  the  United  States  and  of  Great  Britain 
shall  forbid  their  citizens  and  subjects  respectively  to  kill,  capture  or 
pursue  at  any  time  and  in  any  manner  whatever,  the  animals  com- 
monly called  fur  seals,  within  a  zone  of  sixty  miles  around  the 
Pribilov  Islands,  inclusive  of  the  teri'itorial  waters. 

"  The  miles  mentioned  in  the  i)receding  paragraph  are  geographical 
miles,  of  sixty  to  a  degree  of  latitude. 

"■  Articlk  2. 

"The  two  (Tovernments  shall  forbid  theii'  citizens  and  subjects 
respectively  to  kill,  capture  or  pursue,  in  any  maimer  whatever, 
during  tiie  season  extending,  each  year,  from  the  l""'  of  May  to  the 
?>P'  of  July,  both  inclusive,  the  fur  seals  on  the  high  sea,  in  the  part 
of  the  Pacific  Ocean,  inclusive  of  the  Behring  sea.  which  is  situated 
to  the  North  of  the  Ho""  degree  of  North  latitude,  and  eastward  of 
the  180"'  degree  of  longitude  from  (ireenwich  till  it  strikes  the  water 
boundary  described  in  Ai-ticle  1  of  the  Treaty  of  1807  between  the 
United  States  and  Russia,  and  following  that  line  up  to  Behring 
straits. 

"Article  H. 

"  During  the  j)ei-iod  of  time  and  in  the  waters  in  which  the  fur  seal 
fishing  is  allowed,  only  sailing  vessels  shall  be  permitted  to  carry  on  or 
take  part  in  fur-seal  fishing  operations.  They  will  however  be  at 
liberty  to  avail  themselves  of  the  use  of  such  canoes  or  undecked  boats, 
ju-opelled  by  paddles,  oars,  or  sails,  as  are  in  connnon  use  as  fishing 
boats, 

"Article  4. 

"  P^ach  sailing  vessel  authorised  to  fish  for  fur  seals  must  be  pro- 
vided with  a  special  license  issued  for  that  purpose  by  its  Government 
and  shall  be  required  to  carry  a  distinguishing  flag  to  be  prescribed 
bv  its  Government. 


§172.]  SEAL   fisheries:    BERING    SEA.  915 

"Article  5. 

"  The  masters  of  the  vessels  engaged  in  fur  seal  fishing  shall  enter 
accurately  in  their  official  log  book  the  date  and  place  of  each  fur  seal 
fishing  operation,  and  also  the  number  and  sex  of  the  seals  captured 
upon  each  day.  These  entries  shall  be  counnunicated  by  each  of  the 
two  Governments  to  the  other  at  the  end  of  each  fishing  season. 

"Article  6. 

"  The  use  of  nets,  fire  arms  and  explosives  shall  be  forbidden  in  the 
fur  seal  fishing.  This  restriction  shall  not  apply  to  sliot  guns  when 
such  fishing  takes  place  outside  of  Behring's  sea,  during  the  season 
when  it  may  be  lawfully  carried  on. 

"Article  T. 

"  The  two  Oovernments  shall  take  measures  to  control  the  fitness  of 
the  men  authorized  to  engage  in  fur  seal  fishing;  these  men  shall  have 
been  proved  fit  to  handle  with  sufficient  skill  the  weapons  by  means 
of  which  this  fishing  may  be  carried  on. 

"Article  8. 

"  The  regulations  contained  in  the  preceding  articles  shall  not  apply 
to  Indians  dwelling  on  the  coasts  of  the  territory  of  the  United  States 
or  of  Great  Britain,  and  carrying  on  fur  seal  fishing  in  canoes  or 
undecked  boats  not  transported  by  or  used  in  connection  with  other 
vessels  and  propelled  wholly  by  paddles,  oars  or  sails  and  manned  by 
not  more  than  five  persons  each  in  the  Avay  hitherto  practised  by  the 
Indians,  provided  such  Indians  are  not  in  the  employment  of  other 
persons  and  provided  that,  when  so  hunting  in  canoes  or  undecked 
boats,  they  shall  not  hunt  fur  seals  outside  of  territorial  wallers  under 
contract  for  the  delivery  of  the  skins  to  any  person. 

"  This  exemption  shall  not  be  construed  to  affect  the  Municipal  law 
of  either  country,  nor  shall  it  extend  to  the  waters  of  Behring  Sea 
or  the  Avaters  of  the  Aleutian  Passes. 

"  Nothing  herein  contained  is  intended  to  interfere  Avith  the  employ- 
ment of  Indians  as  hunters  or  otherAvise  in  connection  Avitli  fur  sealing 
vessels  as  heretofore. 

"Article  9. 

"  The  concurrent  regulations  hereby  determined  Avith  a  vieAv  to  the 
protection  and  preserA'ation  of  the  fur  seals,  shall  remain  in  force 
until  they  have  been,  in  Avhole  or  in  part,  abolished  or  modified  by 


916  NATIONAL  jurisdiction:  territorial  limits.       [§  1T2. 

common  ag^reemont  between  the  Governments  of  the  United  States 
and  of  (xreat  Britain. 

"  The  said  concurrent  regulations  shall  be  submitted  every  five  years 
to  a  new  examination,  so  as  to  enable  both  interested  Governments  to 
consider  whether,  in  the  light  of  past  experience,  there  is  occasion  for 
any  modification  thereof. 

'•And  whereas  the  (lovernment  of  Her  Britannic  Majesty  did  sub- 
mit to  the  Tribunal  of  Arbitration  by  article  VI IT  of  the  said  Treaty 
certain  questions  of  fact  involved  in  the  claims  referred  to  in  the  said 
article  VIII.  and  did  also  submit  to  us,  the  said  Tribunal,  a  statement 
of  the  said  facts,  as  follows,  that  is  to  say : 

*' '  Findings  of  fact  proposed  by  the  Agent  of  Great  Britain  and 

AGREED  to   AS   PROVED   BY   THE   AoENT   FOR   THE   UnITED   StATES,   AND 

si"b:mitted  to  the  Tribunal  of  Arbitration  for  its  considera- 
tion. 

"'  •  1.  That  the  several  searches  and  seizures,  whether  of  ships  or 
goods,  and  the  several  arrests  of  masters  and  crews,  respectively  men- 
tioned in  the  Schedule  to  the  British  Case,  pages  1  to  00  inclusive, 
were  made  by  the  authority  of  the  United  States  Government.  The 
questions  as  to  the  value  of  the  said  vessels  or  their  contents  or  either 
of  them,  and  the  question  as  to  Avhether  the  vessels  mentioned  in  the 
Schedule  to  the  British  Case,  or  any  of  them,  were  wholly  or  in  part 
the  actual  property  of  citizens  of  the  United  States,  have  been  with- 
drawn from  and  have  not  been  considered  by  the  Tribunal,  it  being 
understood  that  it  is  open  to  the  United  States  to  raise  these  questions 
or  any  of  them,  if  they  think  fit,  in  any  future  negotiations  as  to  the 
liability  of  the  United  States  Government  to  pay  the  amounts  men- 
tioned in  the  Schedule  to  the  British  Case ; 

" '  2.  That  the  seizures  aforesaid,  with  the  exception  of  the  '*  Path- 
finder ""  seized  at  Xeah-Bay,  were  made  in  Behring  Sea  at  the  dis- 
tances from  shore  mentioned  in  the  Schedule  annexed  hereto  marked 
"C;" 

" '  3.  That  the  said  several  searches  and  seizures  of  vessels  were 
made  by  public  armed  vessels  of  the  United  States,  the  conunanders 
of  which  had,  at  the  several  times  when  they  were  made,  from  the 
P^xecutive  Department  of  the  (lOvernment  of  the  United  States,  in- 
structions, a  copy  of  one  of  which  is  annexed  hereto,  marked  "A"  and 
that  the  others  were,  in  all  substantial  respects,  the  same:  that  in  all 
the  instances  in  which  i^roceedings  were  had  in  the  District  Courts 
of  th(>  United  States  resulting  in  condemnation,  such  proceedings  were 
begun  by  the  filing  of  libels,  ii  copy  of  one  of  which  is  annexed  hereto, 
marked  '"  B  ".  and  tliat  the  libels  in  the  other  proceedings  were  in  all 
substantial  respects  the  same:    that  the  alleged  acts  or  offences  for 


§172.]  SEAL    FISHERIES:    BERING    SEA.  917 

which  said  several  searches  and  seizures  were  made  were  in  each  case 
done  or  committed  in  Behring  Sea  at  the  distances  from  shore  afore- 
said; and  that  in  each  case  in  which  sentence  of  condenniation  was 
passed,  except  in  those  cases  when  the  vessels  were  released  after  con- 
demnation, the  seizure  was  adopted  by  the  Government  of  the  United 
States:  and  in  those  cases  in  which  the  vessels  were  released  the  seizure 
was  made  by  the  authority  of  the  United  States :  that  the  said  fines  and 
imprisonments  were  for  alleged  breaches  of  the  municipal  laws  of 
the  United  States,  which  alleged  Ijreaches  were  wholly  committed  in 
Behring  Sea  at  the  distances  from  the  shore  aforesaid ; 

''  *  4.  That  the  several  orders  mentioned  in  the  Schedule  annexed 
hereto  and  marked  "  C  ""  warning  vessels  to  leave  or  not  to  enter 
Behring  Sea  were  made  by  public  armed  vessels  of  the  United  States 
the  commanders  of  which  had.  at  the  several  times  when  they  were 
given,  like  instructions  as  mentioned  in  finding  3,  and  that  the  ves- 
sels so  warned  were  engaged  in  sealing  or  prosecuting  voyages  for 
that  purpose,  and  that  such  action  was  adopted  by  the  Government  of 
the  United  States; 

'• '  5.  That  the  District  courts  of  the  United  States  in  which  any 
proceedings  were  had  or  taken  for  the  purpose  of  condemning  any 
vessel  seized  as  mentioned  in  the  Schedule  to  the  Case  of  Great 
Britain,  pages  1  to  GO.  inclusive,  had  all  the  jurisdiction  and  powers 
of  Courts  of  Admiralty,  including  the  prize  jurisdiction,  but  that  in 
each  case  the  sentence  pronounced  by  the  Court  was  based  upon  the 
grounds  set  forth  in  the  libel. 

"  'Annex  A. 

" '  Treasury  Department.  Office  of  the  Secretary, 

"  '  Washhif/ton.  April  21.  1886. 
"  '  Sir. 

"  '  Referring  to  Department  letter  of  this  date,  directing  you  to  proceed  with 
the  revenue-steamer  Bear,  under  yoiu-  command,  to  the  seal  Islands,  etc..  you 
are  hei'el»y  clothed  with  full  power  to  enforce  the  law  contained  in  the  pro- 
visions of  Section  inr»('.  of  the  United  States'  Revised  Statutes,  and  directed  to 
seize  all  vessels  and  arrest  and  deliver  to  the  proper  authorities  any  or  all 
I'ersons  whom  you  may  detect  violating  the  law  referred  to,  after  due  notice 
shall  have  been  given. 

"  '  You  will  also  seize  any  liquors  or  fire-arms  attempted  to  be  introduced  into 
the  country  without  jiroper  i)erniit.  under  the  provisions  of  Section  19.")  of 
the  Revised  Statutes,  and  the  I'roclaniation  of  the  I'resident  dated  4"'  Feb- 
ruary, 1870. 

"  '  Respectfully  yours. 

'■ '  Signed  :    C.  S.  Fairchild. 

"  'Acting  Secretary. 

"'Captain  M.  A.  IIealy. 

"  '  Couimaniinu  revenue-steamer  Bear,  San-Francisco,  California.' 


918  XATIONAL    JURISDICTION  :    TERRITORIAL   LIMITS.  [§  172. 

'•'Annex  B. 

"'in  thk  district  coirt  of  the  imtel)  states  for  the  district  of  alaska. 
•■  -ArorsT  SPECIAL  tp;rm,  isse. 

••'To  tlio  Honourable  Lafayette  Dawson.  Judge  of  said  District  Court: 

•■'Tlie  lil)el  of  information  of  M.  D.  Ball,  Attorney  for  the  Unitetl  States  for 
tlie  District  of  Alaska,  who  prosecutes  on  behalf  of  said  United  States,  and 
being  i>resent  here  in  Court  iii  his  proj^er  person,  in  the  name  and  on  l>ehalf  of 
the  said  Cnited  States,  against  the  schooner  Thornton,  her  tackle,  apparel, 
boats,  cargo,  and  furniture,  and  .'igainst  all  persons  intervening  for  their 
interest  therein,  in  a  cause  of  forfeiture,  alleges  and  informs  as  follows: 

••'That  Charles  A.  Al>bey.  an  officer  in  the  Revenue  Marine  Service  of  the 
Cnited  States,  and  on  special  duty  in  the  waters  of  the  district  of  Alaska,  here- 
tofore, to  wit.  on  the  !'•  day  of  Augu.st,  188(5.  within  the  limits  of  Alaska  Ter- 
ritory. :ind  in  the  waters  thereof,  and  within  the  civil  and  judicial  district  of 
Alaska,  to  wit,  within  the  waters  of  that  ix>rtion  of  Behring  sea  belonging  to  the 
said  district,  on  waters  navigable  from  the  sea  by  vessels  of  10  or  more  tons 
burden,  seizetl  the  ship  or  vessel  commonly  calletl  a  schooner,  the  Thornton, 
her  tackle,  apparel.  Ixiats.  cargo,  and  furniture,  being  the  property  of  some 
jierson  or  i)ersons  to  the  said  Attorney  unknown,  as  forfeitetl  to  the  United 
States,  for  the  following  causes: 

••  •  That  the  said  vessel  or  schooner  was  found  engaged  in  killing  fur-seal 
within  the  limits  of  Alaska  Territory,  and  in  the  waters  thereof,  in  violation  of 
section  19."»0  of  the  Revised  Statutes  of  the  I'nited  States. 

*•  •And  the  said  Attorney  saith  that  all  and  singular  the  premises  are  and 
were  true,  and  within  the  Admiralty  and  maritime  jurisdiction  of  this  Court, 
and  that  by  reason  thereof,  and  by  force  of  the  Statutes  of  the  United  States 
in  such  cases  made  and  provided,  the  afore  mentioned  and  described  scliooner 
or  vessel.  I>eing  a  ves.sel  of  over  20  tons  burden,  her  tackle,  ajiparel.  boats,  cargo, 
and  furniture,  bec-ame  and  are  forfeited  to  the  use  of  the  said  I'nited  States, 
and  that  said  schooner  is  now  within  the  district  aforesaid. 

••  •  Wherefore  the  said  Attorney  prays  the  usual  i)rocess  and  monition  of  this 
honourable  Court  issue  in  this  behalf,  and  that  all  iiersons  intereste<l  in  the 
Itef ore-mentioned  and  describetl  sch(M)ner  or  vessel  may  be  cite<l  in  general  and 
si)e<ial  to  answer  the  premises,  and  all  due  proceeilings  l)eing  had.  that  the  said 
sclKKjiier  or  ves.<el.  her  tackle,  apparel.  l>oats.  cargo,  and  furniture  ma.v.  for  the 
(•ause  aforesaid,  and  others  apjiearing.  be  condemnetl  by  the  definite  sentence 
and  de<-ree  of  this  honourable  Court,  as  forfeitetl  to  the  use  of  the  said  United 
States,  jiccording  to  the  form  of  the  Statute  of  the  said  Unitetl  States  in  such 
cases  made  and  provided. 

••  •  Signetl  •    M.  D.  Ball. 
"'  United  Stales  I>i.stri<t  Attorney  for  the  District  of  Alaska. 

••  •Annex  C. 

" '  The  following  table  shows  tlie  names  of  the  British  sealing-ves.sels  seizetl 
or  warned  by  United  States  revenue  cruizers  lf(8(>-18rR».  and  the  approximate 
distance  from  land  when  seizetl.  The  distanct^s  assigntnl  in  the  cases  of  the 
f'nrolenu.  Thornton  and  Ontrard  are  on  the  authority  of  U.  S.  Naval  Conuuander 
Ablwy  ( stH»  r»0"'  Ccmgress.  2°''  Session.  Senate  Executive  Documents  N°  lOG.  pp. 
20.  .''.0.  4(M.  The  distances  assignetl  in  the  cases  of  the  Anna  Beck,  W.  P.  Say- 
irard.  Dolphin  and  Grace  are  on  the  authority  of  Captain  Shepard  U.  S.  R.  M. 
(Uhie  Book.  United  States  N"  '2.  18f»0.— pp.  Sf>-82.     See  Ai»peiulix,  vol.  III).' 


172.] 


SEAL    FISHERIES:    BERING    SEA. 


919 


Name  of  vessel.      Date  of  seizure. 


'     United 
Approximate  distance  from  land  when  seized,  ^j  ^akin» 


Carolena !  August  1  1886.... 

Thornton. August  1 1886  .... ! 

Onward August  2  1886  ....; 

Favourite Augu.st  2  1886  ...|; 

Anna  Be(-k July  21887 1 

W.  P.  Say  ward...  July  9  1887 ! 

Dolphin '  July  121887 

Grace July  IT  1887 

Alfred  Adams  ....  August  10  1887  . .  J 

Ada.. August  2.5  1887  ... 

Triumph. August  4  1887 

Juanita July  311889 

Pathfinder July  29  1889 


Triumph July  11 1889 

Black  Diamond..,  July  11 1889 

Lily August 6  1889.... 

Ariel. July  »» 1889 

Kate August  13  1889... 

Minnie .July  151889 

Pathfinder March  27  1890  . . . . 


75  miles 

70  miles 

115  miles 

Warned  by  Corwin  in  about  same  position  as 

Onward. 

66  miles 

59  miles 

40  miles 

96  miles 

62  miles 

15  miles 

Warned  by  Rush  not  to  enter  Behring  Sea 

66  miles 

.50  miles 

Ordered  out  of  Behring  Sea  by  Riish.     ( r )  As 

to  position  when  warned. 

35  miles 

66  miles 

Ordered  out  of  Behring  Sea  by  Rush 

Ditto .--- 

65  miles 

Seized  in  Neah  Bay  « 


Corwin. 
Corwin. 
Corwin. 


Rush. 
Rush. 
Rush. 
Rush. 
Rush. 
Bear. 

Rush. 
Rush. 


Rush. 
Rush. 


Rush. 
Corwin. 


"  Neah  Bay  is  in  the  State  of  Washington,  and  the  Pathfinder  was  seized  there  on 
charges  made  against  her  in  the  Behring  Sea  in  the  previous  year.  She  was  released 
two  days  later. 

"And  whereas  the  Government  of  Her  Britannic  Majesty  did  ask 
the  .said  Arbitrators  to  find  the  said  facts  as  set  forth  in  the  said  state- 
ment, and  whereas  the  Agent  and  Counsel  for  the  United  States  Gov- 
ernment thereupon  in  our  presence  informed  us  that  the  said  state- 
ment of  facts  was  sustained  by  the  evidence,  and  that  they  had  agreed 
M'ith  the  Agent  and  Counsel  for  Her  Britannic  Majesty  that  We,  the 
Arbitrators,  if  we  should  think  fit  so  to  do,  might  find  the  said  state- 
ment of  facts  to  be  true. 

"  Now,  We.  the  said  Arbitrators,  do  unanimously  find  the  facts  as 
set  forth  in  the  said  statement  to  be  true. 

"And  whereas  each  and  every  question  which  has  been  considered  by 
the  Tribunal  has  been  determined  by  a  majority  of  all  the  Arbitrators ; 
"  Now  We,  Baron  de  Courcel,  Lord  Hannen,  Mr.  Justice  Har- 
lan, Sir  John  Thompson,  Senator  Morgan,  the  Marquis  Visconti 
Yenosta  and  Mr.  Gregers  Gram,  the  respective  minorities  not  with- 
drawing their  votes,  do  declare  this  to  be  the  final  Decision  and 
Award  in  writing  of  this  Tribunal  in  accordance  with  the  Treaty. 

"  Made  in  duplicate  at  Paris  and  signed  by  us  the  fifteenth  day  of 
August  in  the  year  1898. 

"And  We  do  certify  this  Engli.sh  Version  thereof  to  be  true  and 
accurate. 

"  Alpii.  de  Courcel. 
"  John  M.  Harlan. 
"  John  T.  Moimjan. 
"  Hannen. 

"  Jno  S  D  Thompson. 
"  Visconti   Venosta. 
"  G.  Gram." 


920  NATIONAL    JURISDICTION  :    TERRITORIAL    LIMITS.  [§  172. 

••  Declarations  made  hy  the  Tribunal  of  Arbitration  and  Referred  to 
the  Governments  of  the  United  States  and  Great  Britain  for  their 
consideration. 

"I. 

*•  The  Arbitrators  declare  that  the  concurrent  Regulations,  as  de- 
termined upon  by  the  Tribunal  of  Arbitration,  by  virtue  of  article 
VII  of  the  Treaty  of  the  29'*^  of  February  1892.  being  apjilicable  to 
the  high  sea  only,  should,  in  their  opinion,  be  supplemented  by  other 
Regulations  applicable  within  the  limits  of  the  sovereignty  of  each 
of  the  two  Powers  interested  and  to  be  settled  by  their  common 
agreement. 

"II. 

"  In  view  of  the  critical  condition  to  which  it  appears  certain  that 
the  race  of  fur-seals  is  now  reduced  in  consequence  of  circumstances 
not  fully  known,  the  Arbitrators  think  fit  to  recommend  both  Gov- 
ernments to  come  to  an  understanding  in  order  to  prohibit  any  killing 
of  fur-seals,  either  on  land  or  at  sea.  for  a  period  of  two  or  three 
years,  or  at  least  one  year,  subject  to  such  exceptions  as  the  two  Gov- 
ernments might  think  projier  to  admit  of. 

"  Such  a  measure  might  be  recurred  to  at  occasional  intervals  if 
found  beneficial. 

"  III. 

'*  The  Arbitrators  declare  moreover  that,  in  their  opinion,  the 
carrying  out  of  the  Regulations  determined  upon  by  the  Tribunal 
of  Arbitration,  should  be  assured  by  a  system  of  stipulations  and 
measures  to  be  enacted  by  the  two  Powers;  and  that  the  Tribunal 
must,  in  consequence,  leave  it  to  the  two  Powers  to  decide  upon  the 
means  for  giving  eifect  to  the  Regulations  determined  upon  by  it. 

••  We  do  certify  this  English  version  to  be  true  and  accurate  and 
have  signed  the  same  at  Paris  this  15'*^  day  of  August  1893. 

"  Alpii   de   Courcel. 
'*  John  M.  Harlan. 

''  Hannen. 

"  Jno  S  D  Thompson. 
"  John  T.  Morgan. 
''  ViscoNTi   Venosta. 
"  G.  Gram." 

By  an  act  of  February  21.  1893."  it  was  provided  that  whenever 
the  (rovernment  of  the  United   States  should  conclude  an  elTective 

a  27  Stat.  472. 


"  /  appro  re  de<larations  I.  and  III. 
'*  /  appro  re  declarations  I .  and  III. 


§  1T2.]  SEAL   FISHERIES:    BERING   SEA.  921 

international  arrangement  for  the  protection  of  the  fur  seals  in  the 
north  Pacific  Ocean,  by  agreement  with  any  other  power  or  as  the 
result  of  the  pending  arbitration,  the  laws  of  the  United  States  for 
the  protection  of  the  fur  seals  and  other  fur-bearing  animals  within 
the  limits  of  Alaska  and  in  the  waters  thereof  should  by  a  jiroclama- 
tion  of  the  President  be  extended  over  all  that  portion  of  the  Pacific 
Ocean  included  in  such  international  arrangement.  The  result  of 
the  arbitration  having  rendered  this  act  inappropriate,  an  act  was 
approved  April  G,  1894,  for  executing  the  regulations  of  the  Paris 
tribunal,  and  a  similar  act  was  passed  in  Great  Britain."  Xo  agree- 
ment for  the  temporary  suspension  of  sealing  was  elfected. 

The  damages  claimed  by  Great  Britain  as  growing  out  of  the  con- 
troversy amounted  to  $542,169.26.  without  interest, 
amages.  which  was  demanded  at  the  rate  of  7  per  cent.  On 
August  21,  1894,  Mr.  Gresham,  Secretary  of  State,  oifered,  as  the 
result  of  a  somewhat  extended  negotiation,  the  sum  of  $425,000  in 
full  and  final  settlement  of  all  claims,  ''  subject  to  the  action  of  Con- 
gress on  the  question  of  appropriating  the  money."  ""  The  Presi- 
dent," said  Mr.  Gresham,  "  can  only  undertake  to  submit  the  matter 
to  Congress  at  the  beginning  of  its  session  in  December  next,  with  a 
recommendation  that  the  money  be  appropriated  and  made  imme- 
diately available  for  the  purpose  above  expressed,  and  if  at  any  time 
before  the  appropriation  is  made  your  [the  British]  Government 
shall  desire,  it  is  understood  that  the  negotiations  on  which  we  have 
for  some  time  been  engaged  for  the  establishment  of  a  mixed  com- 
mission Avill  be  renewed."  The  oifer  was  accepted  by  Sir  Julian 
Pauncefort  on  these  terms.^  At  the  ensuing  session  Congress  did  not 
appro])riate  the  money,  and  the  negotiations  for  a  mixed  commission 
were  renewed.'' 

On  February  8,  1896,  a  convention  was  concluded  at  Washington 
by  Mr.  Olney,  Secretary  of  State,  and  Sir  Julian  Pauncefote  for  the 
appointment  of  two  commissioners,  one  by  the  United  States  and  the 
other  by  Great  Britain,  to  meet  and  sit  at  Victoria,  and  also,  if  either 
commissioner  should  formerly  so  request,  to  sit  at  San  P'rancisco 
for  the .  purpose  of  determining  the  claims  for  damages.  The 
convention  included  by  designation  the  cases  of  the  Wanderer  (1887- 
1889),  Winifred  (1891),  Henrietta  (1892),  and  Oscar  and  Hattie 
(1892),  in  addition  to  the  cases  mentioned  in  the  findings  of  fact  of 
the  Paris  tribunal.'^ 

As  commissioners  under  this  convention,  the  United   States  ap- 


"  28  Stat.  52 ;  S.  Ex.  Doc.  G7,  o-S  Cong.  .3  sess. ;  For.  Rel.  1894,  App.  I.  107-233. 

&  n.  Ex.  Doc.  132.  53  Cong.  3  sess. 

'•.Vnnual  Message  of  President  Cleveland.  Dec.  2,  1895. 

d  For.  Rel.  1890,  281-285. 


922  x.vTioNAT.  jurisdiction:  territorial  limits.       [§  1"2. 

pointed  the  Hon.  AVilliani  L.  Putnam,  a  judge  of  the  circuit  court 
of  the  ITnited  States,  \vhile  the  British  Government  named  the  Hon. 
George  Pklwin  King.. a  judge  of  the  supreme  court  of  Canada.  Any 
cases  in  which  the  commissioners  might  be  unable  to  agree  were,  by 
the  terms  of  the  convention,  to  be  referred  to  an  umpire  to  be  ap- 
pointed by  the  two  (iovernments  or,  if  they  should  disagree,  by  the 
President  of  Switzerland.  The  connnissioners.  however,  were  able 
to  reach  a  decision  without  resort  to  an  umpire.  Their  award  bears 
date  December  17,  189T.«  In  conformity  Avith  this  award  the  Secre- 
tary of  State  delivered  to  the  British  ambassador  at  Washington, 
June  16,  1898.  a  draft  for  the  sum  of  $473,151.26,  the  money  having 
been  duly  appro})riated  by  Congress.^ 

An  act  to  carry  into  etfect  the  regulations  prescribed  by  the  arbi- 
trators was  approved  by  the  President  of  the  United 
Eegaiations.       ^^^^^^  ^^^^^.^^  ^.^  ^g^^^      V^^^  ^^^  ^^jj^^j  ^j^^  Bering  Sea 

award  act.  1894,  was  passed  by  Parliament  April  23,  1894,  for  the 
same  purpose.  Under  the  act  of  Congress,  where  a  vessel  was  seized, 
having  in  its  possession  prohibited  arms  or  implements,  or  sealskins, 
or  the  bodies  of  seals,  in.  the  closed  season,  the  burden  of  proving 
innocence  was  placed  upon  the  master.'"  A  similar  presumption, 
though  it  was  created  by  the  British  act  of  1891,'^  was  omitted  by 
that  of  1894;  and  this  and  other  questions  created  difficulties  in  the 
enforcement  of  the  regulations.'' 

The  Japanese   Government  agreed  to  take  measures  to   prevent 


«  Moore.  Int.  Arltitrations.  II.  212?>. 

6  For.  Uol.  18.98,  371-373.  The  act  of  Congress  of  June  lu,  1898,  by  which  the 
money  was  appropriated,  declared  that  the  appropriation  was  made  without 
admitting  any  lial)ility  for  the  loss  of  prospective  profits  l>y  British  vessels 
cngagi'd  in  i)elagic  sejiling.  or  for  interest  on  the  sums  awarded  to  Great  Britain, 
and  without  admitting  the  authority  of  the  arl)itrators  to  make  any  award  for 
the  arrest  or  detention  of  vessels  not  included  in  the  submission  contained  in  the 
treaty  under  which  tlie  arbitration  was  held. 

'•  Heiioi't  of  Mr.  Olney.  Sec.  of  State,  to  the  President,  Dec.  7.  1800,  For.  Rel. 
IS'.m;.  Ixxii.  See.  also.  United  States  r.  The  Jane  Gray  (1890),  77  Fed.  Rep. 
\H)H:    United  States  r.  The  James  G.  Swan   (1890).  77  Fed.  Hep.  473. 

•JThe  Oscar  &  llattie  r.  l"he  Queen.  23  Canada  Supreme  Court,  .390. 

'^  As  to  the  enforcement  of  the  regulations,  see  For.  Kel.  1894.  App.  I.  107-233; 
S.  Ex.  Doc.  07.  r.3  Cong.  3  sess.  ;  For.  Rel.  1895.  I.  .■59(J-r.92,  015,  010.  04.3-000; 
F(.r.  Rel.  189<;.  2.5.V281  ;    For.  Rel.  1897.  2.58-289;    S.  Doe.  40.  55  Cong.  2  sess. 

As  to  the  cases  of  the  Winidcrrr  and  the  Furoritc,  see  Harmon.  At.  Gen.. 
Oct.  :'>,  1895.  21  Op.  2.34.  2.39:  Griggs.  At.  iWn..  May  4.  1898,  22  Op.  (»4 ;  For.  Rel. 
189.5.  I.  077. 

.\s  to  the  unsuccessful  efforts  of  the  United  States  to  secure  assent  to  the 
prohil)iti()n  of  i)elagic  sealing,  see  For.  Rel.  1894,  App.  I.  228:  For.  Rel.  1895,  I. 
010.  01.5.  (»05-00(»:  President  Cleveland,  ann.  message.  Dee.  7.  1890;  Report  of 
Mr.  Olney.  S«>c.  of  State,  to  the  President.  Dec.  7.  1890.  For.  Rel.  189»>.  Ixxii: 
President  McKiniey.  ann.  message.  Dec.  0.  1897;  For.  Rel.  1897,  2.58-289;  S.  Doc. 
4<».  55  Cong.  2  sess. 


§  173.]  SEAL    FISnERIES  :    BERING    SEA.  923 

foreign  vessels  from  using  the  flag  of  Japan  to  evade  the  regulations, 
but  declined  to  require  Japanese  vessels  to  ol)serve  them  unless  pro- 
tection should  in  like  manner  be  given  to  the  Japanese  seal  fisheries." 
President  Cleveland  stated,  in  his  annual  message  of  December  3, 1894, 
that  only  France  and  Portugal  had  signified  their  willingness  to 
adhere  to  the  Paris  regulations.  The  Danish  Government  declined 
to  do  so  on  the  ground  that  no  Danish  ships  were  engaged  in  seal 
hunting  in  the  waters  in  question.''  The  Russian  Government  con- 
sented to  adhere  to  the  regulations  only  on  condition  that  they  be 
extended  to  the  whole  of  the  Pacific  Ocean  north  of  the  35°  of 
latitude.^- 

An  order  in  council  was  issued  on  the  21st  of  November,  1895, 
under  the  seal  fisheries  act.  1895.  to  give  effect  to  an 

arrangement  with  Russia.     It  prohibited  the  catch- 
arrangement,        .  J       1  ■  •  •       • 

mg  of  seals  by  British  ships  in  certain  "  prohibited 

zones,"  namely,  (1)   a  zone  of  ten  marine  miles  on  all  the  Russian 

coasts  of  Bering  Sea  and  the  Xorth  Pacific  Ocean,  and  (2)  a  zone  of 

thirt}^  marine  miles  around  the  Kormandorsky  Islands  and  Tulenew^ 

(Robben)  Islands.'^     Provision  was  made  for  the  visit  and  seizure  of 

British  ships  by  Russian  officers  in  the  designated  zones,  subject  to 

certain  conditions.     Where  a  Russian  officer  detained  a  British  ship 

or  her  certificate  of  registry  he  was  required,  as  soon  as  possible,  to 

hand  over  the  ship  or  transmit  the  certificate,  as  the  case  might  be, 

to  the  commanding  officer  of  a  British  cruiser  or  to  the  nearest  British 

authority,  and  also  to  satisfy  such  officer  or  authority  that  there  were 

reasonable  grounds  for  the  seizure  and  that  the  case  was  proper  to  he 

adjudicated  in  a  British  court,  as  well  as  to  furnish  the  evidence 

sufficient  for  such  adjudication.® 

4.  I'NiTEi)  States  and  Russian  Arbitration. 
§  173. 

"  I  have  had  a  number  of  interviews  with  Prince  Cantacuzene.  the 

Russian  minister,  on  the  same  subject  [i.  e.,  Russia's 

Diplomatic  corre-    position  as  to  the  protection  of  fur  seals  on  the  high 

spon  ence.  seas].  .  .  .     AVheu   I  called  the  minister's  attention 

to  information  which  had  been  received  indicating  a  purpose  on  the 

"  Mr.  Dun.  iiiiii.  to  .Tapan.  to  Mr.  Greshain.  Sec.  of  State,  tel..  Nov.  27.  1S0.3. 
.MS.  Inst.  .Tapan.  IV.  147.  replying  to  Mr.  Greshani.  Se<-.  of  State,  to  Mr.  Dun, 
niin.  t<.  .lapan,  tel..  Nov.  22.  18I«,  .MS.  Inst.  .lapan.  IV.  14."). 

6  For.  Kel.  l.S'.t.").  I.  (i(!(M;(;i. 

r  For.  Rel.  ISO.").  I.  .18.5 ;    11.  1117.     See  also  For.  Kel.  189(5,  28r)-281). 

fJ.Vs  to  the  arrest  in  the  autumn  of  18!>.'>.  anil  the  conviction  and  iinprisoninent. 
by  the  Russian  authorities,  of  seventeen  persons,  including  five  citizens  of  the 
United  States,  for  seal  iKjaching  on  Robl»en  Island,  see  For.  Rel.  180«5.  495-507. 

>-  For.  Rel.  1895.  1.  (581 -r^2. 


924  NATIONAL  JURISDICTION :    TERRITORIAL  LIMITS.  [§  173. 

part  of  his  Government  to  make  concessions  to  Great  Britain  incon- 
sistent with  the  ri<rht  asserted  bv  the  United  States  before  the  Paris 
tribunal,  he  informed  me  that  Mr.  Blaine  positively  refused  to  allow 
the  Kussian  (lovernment  to  become  a  party  to  that  treaty,  and  it  was 
therefore  obli|red  to  take  care  of  itself  as  best  it  could ;  that  his  Gov- 
crnment  did  not  believe  the  right  asserted  by  the  United  States  to 
pr()|)erty  in  the  seals  on  the  high  seas  was  valid,  and  that  Russia  could 
not.  therefore,  assume  the  attitude  of  the  United  States  on  that  ques- 
tion. I  can  not  resist  the  belief  that  in  these  statements  the  minister 
represented  the  real  position  of  the  Russian  Government." 

Mr.  (iresliain.  Sec-,  of  State,  to  ^Ir.  White,  inin.  to  Russia,  No.  112.  July 
14.  ISOa.  MS.  Inst.  Russia.  XVII.  177. 

"  I  have  to  acknowledge  the  receipt  of  your  despatch  Xo.  100  of  the 
Otli  ultimo,  transmitting  the  inquiry  of  the  director  of  the  Asiatic 
deijartment  of  the  foreign  office  of  the  Imperial  Government,  as  to 
whether  the  Ignited  States  will  object  to  the  seizure  by  Russian  cruis- 
ers of  American  vessels  poaching  Russian  seals. 

"  In  view  of  the  questions  submitted  to  the  Paris  tribunal  of  arbi- 
tration and  the  probability  of  an  early  determination  of  the  same,  I 
think  the  matter  may  be  safely  left  in  abeyance.  The  long  and  unin- 
terruj)ted  friendly  relations  between  the  United  States  and  Russia,  is 
a  guaranty  that  neither  will  do  anything  which  would  make  the  solu- 
tion of  any  (juestion  arising  between  them,  growing  out  of  poaching 
in  the  Bering  Sea.  difficult  of  solution. 

"  If  it  be  true  that  Russia  sympathizes  with  the  United  States  in 
the  i)resent  controversy  submitted  to  the  Paris  tribunal,  and  believes 
the  right  which  we  asserted  is  well  founded,  it  is  difficult  to  under- 
stand why  that  (iovernment  agreed  to  make  indemnity  for  the  seizure 
of  two  British  vessels  j^oaching  in  the  Boring  Sea  near  the  eastern 
shore."" 

Mr.  (Jrt'shain.  So<-.  of  State,  to  Mr.  White,  inin.  to  Russia.  No.  11.''..  July 
14.  tS'.C!.  MS.  Inst.  Russia,  XVII.  179. 

"  I  have  to  acknowledge  the  receipt  of  your  despatch  Xo.  205  of 
January  -l-l.  1S!)C>,  in  re})ly  to  the  Department's  instruction  Xo.  1-16 
of  Xovcmber  ±1.  IcS!)."). 

••  In  that  instruction  you  were  <lirected  to  ascertain  with  special 
i-eference  to  the  seizure  in  180i*  of  the  American  fishing  ves.sels  Kate 
and  Aniui,  ('.  II.  Wli'ttc.  and  Ja)nes  IhtmUton  Lew'ts,  whether  the 
Imperial  (Jovernment  accej)ts  the  Paris  triljunaTs  decision  as  a  cor- 
rect statement  of  the  limits  of  Russian  jurisdiction  in  Bering  Sea  at 
that  time. 

'•  In  the  note  from  the  Russian  foreign  office  inclosed  in  your  Xo. 
140,  that  question  is  not  specifically  answered,  but  the  right  of  Russia 


§173.]  SEAL    fisheries:    BERING   SEA.  925 

to  seize  the  above-named  vessels  in  Bering  Sea  twenty  or  more  miles 
from  any  Russian  land  is  defended  by  reference  to  the  claim  of  Rus- 
sian jurisdiction  in  Bering  Sea  made  by  the  United  States  in  its 
contention  with  Great  Britain  before  the  Paris  tribunal.  'Although 
it  is  true,'  the  minister  says,  '  that  the  Imperial  (Tovernment,  as  you 
have  had  the  goodness  to  remark,  was  not  one  of  the  parties  among 
whom  the  differences  submitted  to  arbitration  had  arisen,  that  is  to 
say,  England  and  the  United  States,  it  is  not  the  less  to  be  expected 
that  the  Cabinet  at  Washington,  which  maintained  before  the  tribunal 
of  arbitration  the  widest  doctrines,  will  not  depart  from  that  breadth 
of  view  in  the  solution  to  be  given  equallv  to  matters  of  arrest  of 
American  vessels  to  which  allusion  is  made  in  the  note  before  men- 
tioned, although  previous  to  the  conclusion  of  the  arrangement  of 
1894.' 

'•  The  question  to  be  considered  in  the  present  controversy  is  simply 
whether  Russia  had  a  right  to  seize  the  American  fishing  vessels 
named  in  the  place  where  they  were  seized  in  the  year  1892.  The 
question  of  the  preservation  of  the  fur  seal  is  not  involved,  and  the 
provisions  of  the  modus  vivendi  signed  May  4/April  22,  1894,  are 
inapplicable  to  the  solution  of  the  point  in  issue.  It  is  true  that  the 
United  States  took  the  position  in  diplomatic  correspondence  with 
Great  Britain,  and  asserted  before  the  Paris  tribunal,  that  Russia  had, 
and  had  exercised,  certain  exclusive  jurisdictional  rights  in  Bering 
Sea  beyond  the  ordinary  three-mile  limit,  but  this  contention  w^as 
declared  l)y  the  arbitrators,  with  only  one  dissenting  voice,  to  be 
imtenable.     Their  decision  was  as  follows: 

" '  By  the  nkase  of  1821  Russia  claimed  jurisdiction  in  the  sea  now 
known  as  the  Behring  Sea  to  the  extent  of  100  Italian  miles  from  the 
coasts  and  islands  belonging  to  her,  but,  in  the  course  of  the  negotia- 
tion which  led  to  the  conclusion  of  the  treaties  of  1824  with  the  United 
States  and  of  1825  with  Great  Britain,  Russia  admitted  that  her 
jurisdiction  in  the  said  sea  should  be  restricted  to  the  reach  of  cannon 
shot  from  shore,  and  it  appears  that  from  that  time  up  to  the  time  of 
the  cession  of  Alaska  to  the  United  States,  Russia  has  never  asserted 
in  fact,  or  exercised  any  exclusive  jurisdiction  in  Behring's  Sea  or  any 
exclusive  rights  in  the  seal  fisheries  therein  beyond  the  ordinary  limit 
of  territorial  waters.' 

'*  Mr.  Justice  Harlan,  one  of  the  arbitrators  chosen  by  the  United 
States,  made  an  elaborate  historical  and  legal  review  of  the  propo- 
sition, and  expressed  the  following  conclusion  in  an  opinion  which  he 
ivad  to  the  conunission.  before  the  award  was  made:  '  To  the  first. — 
Prior  to  and  up  to  the  time  of  the  cession  of  Alaska  to  the  United 
States.  Russia  did  not  ass(>rt  nor  exercise  any  exclusive  jurisdiction 
in  Behring  Sea,  or  any  exclusive  rights  in  the  fur  seal  fisheries  in 


926  NATIONAL  JURISDICTION  :    TERRITORIAL  LIMITS.  [§  173. 

that  sea.  ontskle  of  ordinary  territorial  ivaters,  except  that  in  the 
nkase  of  1821  she  did  assert  the  right  to  prevent  foreign  vessels  from 
ajiproaching  nearer  than  100  Italian  miles  the  coasts  and  islands 
named  in  that  nkase.  Bnt.  pending  the  negotiations  to  which  that 
ukase  gave  rise,  Eussia  voluntarily  suspended  its  execution,  so  far  as 
to  direct  its  officers  to  restrict  their  surveillance  of  foreign  vessels  to 
the  distance  of  cannon  shot  from  the  shores  mentioned,  and  by  the 
treaty  of  18-24  with  the  United  States,  as  well  as  by  that  of  1825  with 
(iroat  Britain,  the  above  ukase  was  withdrawn,  and  the  claim  of  au- 
thority, or  the  power  to  prohibit  foreign  vessels  from  approaching  the 
coasts  nearer  than  100  Italian  miles  was  abandoned,  by  the  agreement 
eml)odied  in  those  treaties  to  the  effect  that  the  respective  citizens  and 
subjects  of  the  high  contracting  parties  should  not  be  troubled  or 
molested,  in  any  part  of  the  great  ocean  commonly  called  the  Pacific 
Ocean,  either  in  navigating  the  same  or  in  fishing  therein,  or  in  land- 
ing at  such  parts  of  the  coast  as  shall  not  have  been  already  occupied, 
in  order  to  trade  Avith  the  natives,  under  the  restrictions  and  condi- 
tions specified  in  other  articles  of  those  treaties.'  (Fur  Seal  Arbitra- 
tion, vol.  1,  p.  110.) 

"  While  the  Paris  tribunal  was  sitting  upon  the  question  of  Rus- 
sian jurisdiction  in  Bering  Sea,  that  Government  tendered  a  pecuni- 
ary indemnity  to  (ireat  Britain  for  the  seizure  of  two  British  vessels 
in  Bering  !-^ea  ni^ar  the  eastern  shore,  but  outside  the  three-mile  limit, 
while  refusing  at  the  same  time  indemnity  for  the  seizure  of  four 
other  British  vessels  which  had  taken  seals  within  the  three-mile 
limit.  This  transaction  was  reported  to  the  Department  in  your 
predecessor's  despatch  No.  Ill  of  June  17,  1803. 

••  This  acknowledgment  by  Russia  that  her  exclusive  jurisdiction 
stopped  within  the  ordinary  three-mile  limit  in  Bering  Sea  as  well 
as  in  other  portions  of  the  Pacific  Avas  used  with  effect  by  Great 
Britain  l)efore  the  Paris  tribunal.  July  14,  189.3,  Mr.  Gresham,  Sec- 
retary of  State,  said  to  your  predecessor:  *  If  it  be  true  that  Russia 
sym])athizes  with  the  United  States  in  the  j)resent  controversy  sub- 
mitted to  the  Paris  tribunal,  and  believes  the  right  which  Ave  asserted 
is  Avell  founded,  it  is  difficult  to  understand  A\-hy  that  GoA^ernment 
agreed  to  make  an  indeuniity  for  the  seizure  of  tAvo  British  A-essels 
poaching  in  Bering  Sea  near  the  eastern  shore.' 

"Again,  the  efforts  noAv  being  made  by  Russia  to  induce  the  poAvers 
interested  to  extend  the  r(>gulations  for  fur-seal  fishing  in  Bering  Sea 
to  all  the  Avaters  of  the  Pacific  Ocean  north  of  the  35th  degree  of  lat- 
itude, indicates  and  implies  an  acceptance  of  the  decision  of  the 
Paris  tribunal,  and  a  general  jiolicy  in  consonance  Avith  its  findings. 

••  In  replying  to  your  inquiry,  the  Russian  foreign  office  seems  to 
have  carefully  avoided  asserting  a  distinct  claim  to  sovereign  rights 


§  1^'3-]  SEAL    fisheries:    BERING    SEA.  927 

in  Bering  Sea.  It  merely  expresses  the  assumption  that  this  Govern- 
ment Avill  assent  to  a  settlement  of  these  claims  on  the  basis  of  its 
contention  before  the  Paris  tribunal.  To  this  you  are  instructed  lo 
say  in  reply  that  the  United  States  regards  the  decision  of  the  Paris 
tribunal  as  an  authoritative  declaration  of  international  law,  the 
effect  of  which  is  not  even  drawn  in  question  by  any  decisions  of  a 
contrary  character;  which  on  the  other  hand  is  both  sound  in  prin- 
ciple and  sanctioned  by  uniform  usage;  and  Avhich  has  been  most 
emphatically  affirmed  by  the  practice  and  conduct  of  Russia  herself. 
The  decision  is  directly  applicable  to  the  seizures  in  question,  which 
are  parallel  in  all  essential  particulars  with  the  British  cases  referred 
to.  and  are  entitled  to  the  same  consideration  at  the  hands  of  the 
Russian  Government. 

"  You  are  requested  to  lay  the  foregoing  views  before  the  Russian 
foreign  office  with  the  least  practicable  delay,  and  to  insist  that  the 
question  of  the  amount  of  the  indenniity  to  be  paid  on  account  of  sucli 
seizures  is  the  only  real  question  for  discussion  and  should  be  taken 
up  and  disposed  of  with  all  reasonable  despatch." 

Mr  Olney,  Sec.  of  State,  to  Mr.  Breckinridge,  inin.  to  Russia.  April  25. 
180(>,  MS.  Inst.  Russia,  XVII.  444. 

'"■  In  our  own  relations  with  Ruissia  we  have  recently  had  an  illustra- 
tion of  the  absence  of  binding  force  of  generally  accepted  principles 
of  international  law.  •  I  refer  to  the  case  of  the  Jame><  Hamilton  Levels 
and  the  reply  of  the  Russian  (xovernment,  referred  to  in  the  embassy's 
Xo.  177  of  the  11th  instant,  in  which  the  Russian  (jovernment.  finding 
that  the  generally  accepted  principle  of  a  jurisdiction  extending  ?> 
miles  out  to  sea  is  inadequate  to  the  defense  of  its  case,  claims  that  the 
limit  of  marine  jurisdiction  should  be  considered,  in  view  of  modern 
conditions,  as  extending  to  at  least  5  miles  from  shore.'* 

Mr.  Peirce.  cliarge  d'aff.  ad.  int.  at  St.  Petersburg,  to  Mr.  Hay,  See.  of 
State.  Nov.  !).  1S08,  For.  Rel.  1S9S.  54(3.  .549. 

By  an  agreement  concluded  at  St.  IVtersburg  August  2C)/Sept.  8. 
11)00.  claims  for  indemnity  growing  out  of  the  seiz- 
^^^  '  ures  l)y  the  Russian  cruisers  were  submitted  to  Mr. 

T.  M.  C.  Asser.  nieuilxM-  of  the  council  of  state  of  the  Netherlands. 
It  was  stipulated  that  the  judguient  in  each  case  should  be  govei-ned 
by  the  general  ])rinciples  of  the  law  of  nations  and  the  s|)irit  of  inter- 
national agreements  ap[)licable  to  the  matter.  With  reference  to 
this  stipulation,  the  arbitrator  ol)served  that  it  was  conceded  that  it 
should  have  no  retroactive  force,  and  that  he  should  ai)ply  to  the 
cases  only  the  jirinciples  of  the  law  of  nations  and  the  international 
treaties  which  were  in  force  and  obligatory  on  the  parties  at  the 
time  of  the  seizures. 


928  NATIONAL  JURISDICTION  :    TERRITORIAL  LIMITS.  [§  1T3. 

The  arbitrator  found  that  the  Cape  Horn  Pigeon,  a  whaling  bark, 
having  sailed  from  San  Francisco,  December  7,  1891,  with  a  crew  of 
thirty  persons,  under  the  command  of  a  captain  named  Scullan,  was, 
on  September  10,  1892,  while  engaged  in  fishing  for  whales  in  the 
Sea  of  Okhotsk,  on  the  high  seas,  seized  by  a  Russian  cruiser  and 
taken  to  Vladivostok,  where  she  was  detained  till  October  1,  1902.  In 
this  case  it  Avas  admitted  that  the  commander  of  the  Russian  cruiser 
had  been  in  error  in  his  suspicions  that  the  bark  was  engaged  in  an 
illicit  pursuit,  and  the  Russian  Government  offered  to  pay  a  proper 
indemnity,  so  that  the  duty  of  the  arbitrator  in  this  case  Avas  con- 
fined to  fixing  the  amount.  He  awarded  $38,750,  w^ith  interest  at 
six  per  cent  from  September  9,  1892,  till  the  day  of  payment.  The 
award  included  an  allowance  not  only  for  damage  actually  suffered, 
but  also  for  loss  of  the  profits  which  would  have  been  made  in  the 
natural  course  of  things. 

In  the  case  of  the  schooner  James  Hamilton  Lewis  it  Avas  alleged  by 
the  claimants  that  the  A'essel  Avas  seized  August  2,  1891,  by  a  Russian 
cruiser,  about  20  miles  from  the  island  of  Cuivre;  that  the  schooner 
Avas  first  compelled  to  lie  to  by  a  shot  from  the  cruiser,  and  Avas  then 
boarded  by  a  Russian  officer  in  a  small  boat,  Avho,  after  taking  the 
ship's  papers  back  Avitli  him  to  the  cruiser,  returned  Avith  some 
armed  men  and  ordered  the  master  to  go  as  a  prisoner  on  board  the 
cruiser,  with  all  his  crew  except  scA^en  men;  that  the  master  refused 
to  obey  the  order  and  made  an  effort  to  get  away;  that  the  cruiser 
then  began  a  ])ursuit,  and,  overhauling  the  schooner,  captured  her, 
and  conducted  her,  Avith  her  crcAv,  to  Vladivostok ;  that  the  schooner, 
Avith  her  equipment  and  cargo  and  the  personal  property  of  her 
master,  Avas  confiscated,  and  that  her  master,  officers,  and  creAv  Avere 
held  as  prisoners  and  subjected  to  scA'ere  treatment.  Damages  were 
claimed  to  the  amount  of  $101,336,  Avith  interest  at  6%  per  annum. 

On  the  ])art  of  the  Russian  (jOA'ernment  it  Avas  maintained  that  the 
schooner.  Avhen  first  seen  by  the  cruiser,  Avas  only  5  miles  from  the 
island  of  Medny  or  Cuivre,  and  that  she  Avas  seized  at  a  place  only 
11  or  12  miles  distant  from  the  shore;  that  it  Avas  to  be  inferred  from 
a  series  of  circumstances  that  the  schooner  had  been  guilty  of  hunting 
seals  in  Russian  territorial  Avaters,  and  that  the  Russian  officers  Avere 
therefore  justified  in  j)ursuing  her  outside  those  waters  and  in  seiz- 
ing and  confiscating  her,  together  with  the  cargo,  and  that  the  impris- 
onment of  the  creAv  Avas  caused  l)v  their  resistance  to  the  arrest  and 
seizure  of  the  shij). 

On  July  4,  1902,  the  agent  of  the  United  States,  Mr.  Peirce,  made, 
by  specific  authority  of  his  (Toverninent  in  reply  to  a  question  of  the 
arbitrator,  the  following  declaration  : 

'•  The  Government  of  the  United  States  claims,  neither  in  Bering 


§1^3-]  SEAL    fisheries:    BERING    SEA.  929 

Sea  nor  in  its  other  bordering  waters,  an  extent  of  jurisdiction  greater 
than  a  marine  league  from  its  shores,  but  bases  its  claims  to  such  juris- 
diction upon  the  folio-wing  principle: 

''  The  Government  of  the  United  States  clriims  and  admits  the 
jurisdiction  of  any  state  over  its  territorial  waters  only  to  the  extent 
of  a  marine  league  unless  a  different  rule  is  fixed  by  treaty  between 
two  states;  even  then  the  treaty  states  are  alone  affected  by  the  agree- 
ment." 

The  arbitrator,  after  observing  that  there  existed  l)etween  the 
United  States  and  Russia  at  the  time  of  the  seizure  no  convention 
regulating  the  taking  of  fur  seals  in  such  manner  as  to  affect  the 
ordinary  rules  of  jurisdiction  under  the  law  of  nations,  declared  that, 
Avhether  the  seizure  took  place  '20  or  only  11  miles  from  land,  it  was 
made  outside  Russian  territorial  waters;  that  the  contention  that  a 
ship  of  war  might  pursue  outside  territorial  waters  a  vessel  whose 
crew  had  committed  an  unlawful  act«»in  the  territorial  waters  or  on 
the  territory  of  the  state,  was  not  in  conformity  Avith  the  laAV  of 
nations,  since  the  jurisdiction  of  the  state  could  not  be  extended 
beyond  the  territorial  sea,  unless  by  express  convention;  and  that  it 
was  therefore  unnecessary  to  consider  the  alleged  grounds  for  infer- 
ring that  the  vessel  had  been  guilty  of  the  illegal  hunting  of  seals  in 
the  territorial  waters  or  on  the  territory  of  Russia.  An  aAvard  was 
made  in  favor  of  the  claimants  for  $28,588.  with  interest  at  G  per  cent. 

In  the  case  of  the  schooner  C.  II.  White,  it  was  admitted  on  the  part 
of  Russia  that  the  seizure  took  place  about  23  miles  from  the  Russian 
coast,  bu.t  was  alleged,  as  in  the  preceding  case,  that  it  was  to  be 
inferred  from  a  series  of  circumstances  that  the  vessel  had  been  guilty 
of  hunting  seals  illegally  in  Russian  territorial  waters.  The  arbi- 
trator, applying  the  same  jjrinciples  as  in  the  case  of  the  Jdtnes 
Ildm'iJtou  Levels.,  awarded  $32,444,  with  interest  at  six  per  cent  per 
annum. 

August  12,  1892.  the  American  schooner  Kate  and  Anna,  when  on 
the  high  seas  about  30  miles  from  the  nearest  Russian  land,  was 
brought  to  by  a  Russian  cruiser,  whose  connnander.  after  requiring 
the  master  of  the  schooner  to  l)ring  his  papers  on  l)<)ard  for  examina- 
tion, ordered  124  sealskins. which  Avere  then  on  the  schooner  to  be  de- 
livered np  and  declared  them  to  be  confiscated,  on  the  assumption 
tliat  the  nuister  had  been  sealing  in  Russian  territorial  waters.  The 
Russian  Government,  in  view  of  the  lack  of  "  positive  proofs  "  of  the 
master's  guilt,  and  as  evidence  of  a  desire  to  maintain  the  most 
friendly  relations  with  the  American  Government,  admitted  its  obli- 
gation to  make  indemnity  for  the  loss,  to  the  amount  of  $1,240  (124 
skins  at  $10),  with  interest  at  (>  per  cent  from  August  12.  1902.  The 
arbitrator  awarded  $1,488  (124  skins  at  $12),  with  interest. 

II.  Doc.  551 59 


930  NATIONAL  JURISDICTION  :    TERRITORIAL  LIMITS.  [§  1T4. 

VII.   VESSELS. 
§174. 

It  i^  often  stated  that  a  ship  on  the  high  seas  constitutes  a  part  of 

the  territory  of  the  nation  whose  flag  it  flies.     In  the 

])hysical  sense,  this  phrase  obviously  is  metaphorical. 

In  tlie  legal  sense,  it  means  that  a  ship  on  the  high  seas  is  subject  to 

the  exclusive  jurisdiction  of  the  nation  to  Avhich.  or  to  whose  citizens, 

it  belongs.     The  jurisdiction  is  quasi  territorial. 

Woolsey.  Int.  Law.  §  .■>4 ;  Field.  Int.  Code.  §  3(10;  0.">  North  Am.  Rev.  (July 
lSt;2|.  8:  Cnipo  r.  Kelly.  IG  Wall.  (>10;  Wilson  v.  McNamee.  102  U.  8. 
r>T2.  r»T4 :  Re  Monoan,  14  Fed.  Rep.  44. 

The  hellijjerent  right  of  visitation  and  search  forms  an  exception  to  this 
rule.  The  only  general  e.xception,  in  time  of  peace,  is  that  of  piracy 
jure  (jentiuni.  The  scene  of  the  pirate's  operations  being  the  high 
seas,  and  his  crime  being  treated  as  a  renunciation  of  the  protection 
of  the  flag  which  he  may  carry,  he  is  treated  as  an  outlaw,  whom  any 
nation  may  capture  and  punish. 

Dr.  F.  de  Martens,  as  arbitrator  in  the  case  of  the  Costa  Rica  Packet,  held 
that  the  Dutch  courts  were  incompetent  to  entertain  a  prosec-ution  of 
the  master  of  a  British  whaler  for  taking  some  li(iuor  from  an  alleged 
Dutch  prauw  (native  boat),  which  was  floating  derelict  at  sea,  out- 
side territorial  waters.     (Moore,  Int.  Arbitrations.  V.  40.>?. ) 

''  I  have  no  doubt  that  an  offence,  Committed  on  board  a  public  ship 
of  war.  on  the  high  seas,  is  committed  within  the  jurisdiction  of  the 
nation  to  whom  the  ship  belongs." 

Tresident  Adams  to  Mr.  IMckering.  Sec.  of  State.  May  21,  1700.  .John 
Adams'  Works,  VIII.  (mI. 

See  .Moore  on  Extradition.  I.  1.3.5,  §  104.  A  sentry  on  the  U.  S.  S.  IiuJe- 
liciidciicc  was  indicted  under  §  8  of  the  act  of  Congress  of  April  30. 
17'.H».  for  murder,  in  killing  the  cook's  mate  on  l)oard  ship  in  Boston 
harbor.  Held,  that  the  statute  did  not  confer  jurisdiction  on  the 
rnite<l  States  courts  where  tlie  place  was  within  the  jurisdiction  of  a 
State.      (United  States  r.  Bevans  (1818).  3  Wheaton.  .33(). ) 

Complaint  having  been  made  that  the  marine  court  of  the  city  of 
New  York  had  assumed  jurisdiction  to  try  and  punish  the  nuister  of 
a  Sardinian  vessel  for  an  assault  and  battery  alleged  to  have  been 
committed  by  him  upon  two  of  his  seamen  on  the  high  seas,  the  fol- 
lowing reply  was  made:  "  If  this  was  the  position  of  the  Phcho  when 
the  alleged  assault  was  committed  the  jurisdiction  of  this  matter 
belongs  exclusively  to  the  Government  of  Sardinia,  and  such  would 
no  d()ul)t  have  been  the  decision  of  the  court  of  appeals  in  New  York 
if  the  caM'  had  been  brought  before  it.  .  .  .  Were  there  such  a  law  of 
New  York  as  is  alleged,  it  would  not  give  jurisdiction  over  the  case. 
.  .  .  :  but  the  law  has  been  misapj^rehended.  Upon  examination  of 
sec.  4.  title  7,  of  the  New  York  Code  of  Procedure  giving  jurisdiction 


§  1T4.]  VESSELS.  931 

to  the  marine  court  it  does  not  appear  that  this  law  was  designed  to 
confer  on  that  court  power  to  decide  cases  arising  on  board  foreign 
merchant  vessels  on  the  high  seas.  It  provides  that  the  marine  court 
shall  have  jurisdiction  '  in  an  action  by  or  against  any  person  belong- 
ing to  or  on  board  of  a  vessel  in  the  merchant  service,  for  an  assault 
and  battery  or  false  imprisonment  committed  on  board  such  vessel 
upon  the  high  sea  or  in  a  place  without  the  United  States  of  which  the 
ordinary  courts  of  law  of  this  State  have  jurisdiction.'  The  vessels 
referred  to  in  that  law  can  only  mean  merchant  vessels  of  the  United 
States.  The  jurisdiction  of  the  ordinary  courts  of  law  therein  alluded 
to  is  that  derived  from  the  laws  of  the  United  States.  The  acts  of 
Congress  authorize  State  courts  to  take  cognizance  of  certain  cases 
arising  on  merchant  vessels,  but  it  is  always  understood  to  mean  ves- 
sels of  the  United  States  only,  as  Congress  could  neither  exercise  nor 
extend  its  control  over  any  other;  and  the  object  of  the  law  of  New 
York  was  to  include  the  marine  court  among  those  authorized  to 
enforce  the  act  of  Congress." 

Mr.  Marcy.  Sec.  of  State,  to  Chevalier  Bertinatti,  Sardinian  min.,  Dec.  1, 

1858,  MS.  Notes  to  Italian  States,  VI.  178. 
See.  to  the  same  effect,  Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Harrison.  Dec. 

7,  1837,  7  MS.  Desp.  to  Consuls,  180. 

••  Both  the  public  and  private  vessels  of  every  nation  on  the  high 
.seas  and  out  of  the  territorial  limits  of  any  other  state  are  subject  to 
the  jurisdiction  of  the  state  to  which  they  belong,  and  this  jurisdic- 
tion is  exclusive  so  far  as  respects  offences  against  the  local  laws  of 
the  vessel's  nation." 

Mr.  Fish.  Sec.  of  State,  to  Gen.  Schenck.  min.  to  England.  Nov.  8.  1873, 
MS.  Inst.  Gr.  Br.  XXIII.  431. 

'•  Merchant  vessels  on  the  high  seas  being  constructively  consid- 
ered as  for  most  i)urposes  a  part  of  the  territory  of  the  nation  to 
which  they  belong,  they  are  not  subject  to  the  criminal  laws  and 
processes  of  another  nation ;  and  any  attempt  of  the  officers  or  citi- 
zens of  the  latter  to  execute  and  .serve  such  laws  and  processes  on 
board  of  them  can  only  be  regarded  as  an  illegal  i^roceeding  which 
their  masters  and  crews  are  justified  not  only  in  disregarding  but 
also  in  resisting." 

Mr.  Blaine,  See.  of  State,  to  Mr.  Ryan,  min.  to  Mexico.  Nov.  27,  1880, 
For.  Kol.  1880,  (iU. 

This  instruction  related  t<»  the  case  of  the  .Vmerican  schooner  liohcrt 
liiiff.  on  whose  master  the  Mexican  authorities  were  said  to  have 
attempted  to  serve  process  when  the  vessel  was  9  miles  from  land, 
for  an  offence  allege<l  to  have  heen  connnitted  by  him  on  a  previous 
voyage.  It  was  afterwards  stated  that  the  vessel,  when  the  process 
was  served,  was  less  than  3  miles  from  the  coast.  (For.  Rel.  1890, 
(;:'(>-023,  029-(J31.) 


932  NATIONAL  JURISDICTION  :    TERRITORIAL  LIMITS.  [§  174. 

The  allegation  in  an  indictment  that  the  offence  was  committed 
••  on  the  high  seas  and  within  the  jurisdiction  of  this  court  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  said  United 
States  of  America,  and  out  of  the  jurisdiction  of  any  particular 
State  of  the  said  United  States  of  America,  in  and  on  board  of  a 
certain  American  vessel,  the  same  being  then  and  there  a  schooner 
called  and  named  *  Olive  Pecker.'  then  and  there  belonging  to  a 
citizen  or  citizens  of  the  said  United  States  of  America  whose  name 
or  names  i<  or  are  to  the  grand  jurors  aforesaid  unknown."  was  held 
to  constitute  a  sufficient  allegation  as  to  the  locality  of  the  offence. 

Andersen  r.  United  States.  170  U.  S.  481.  490-493.  See,  as  to  the  eir- 
(unistances  of  this  case.  Mr.  Cridler.  Third  Assist.  Sec.  of  State,  to 
Messrs.  I'eabotly  &  Co.,  Oct.  HJ.  1897,  221  MS.  Doni.  Let.  514;  Mr. 
Adee.  2nd  Assist.  Sec.  of  State,  to  the  Attorney-(jeneral,  Oct.  27, 
1897.  222  MS.  D<.ni.  Let.  4.',. 

That  crimes  connnitted  on  l>oard  merchant  vessels  on  tlie  high  seas  are 
sui>.iect  to  tlie  jmisdiction  if  tlie  nation  to  which  tlie  vessel  belongs, 
see  Unite<l  States  r.  Sharp.  1  Peters  C.  C.  118.  121  ;  Uushing.  At- 
(ien..  Sei)t.  <!.  IS-Hi.  8  Op.  7?>. 

The  master  of  a  British  ship  was  held  liable  to  conviction  for  false  im- 
p!is(inment  for  transporting  from  Chile  to  England  certain  persons 
whom  the  Chilean  Government  had  banished  and  had  employed  him 
to  take  to  England.  (Keg.  c.  Lesley  (ISOJ),  BelTs  C.  C.  220,  8  Cox 
C.  C.  2tj9.l 

•'  I  inclose  herewith  a  copy  of  a  dispatch  recently  received  from 
A.  C.  Litchheld.  e^q..  consul-general  of  the  United  States  at  Calcutta, 
in  relation  to  the  case  of  one  John  Anderson,  an  ordinary  seaman  on 
Itoard  the  American  l)ark  ('.  O.  Wliitiuore.  who.  it  appears,  stabbed 
and  killed  the  first  officer  of  the  ship  on  the  31st  of  January  last, 
while  that  ves-el  was  on  her  Avay  from  New  York  to  Calcutta,  sixteen 
(hiys  from  her  port  of  departure,  and  on  the  high  seas  in  latitude  '25° 
'■\->'  N.  and  longitude  35"  50'  W. 

•'  '^'ou  will  p«'rceive  that  the  consul-general  invoked  the  aid  of  the 
ioc-al  police  authoiities  in  securing  the  safe  custody  of  the  accused, 
who  was  a  prisoner  of  the  United  States,  until  he  coidd  complete  the 
necc^ary  arrangements  for  ^ending  liim  to  this  country  for  trial, 
again-t  whose  municipal  laws  only  he  was  accused  of  having 
offended,  and  that  while  thus  in  the  temporary  custody  of  the  local 
jM)li(-e.  the  colonial  authorities  look  judicial  cognizance  of  the  matter, 
claiming,  under  the  advice  of  the  advocate-general  of  the  colony,  that, 
inider  a  colonial  statute,  which  confers  upon  the  courts  of  the  colony 
juri-diction  of  crimes  committed  by  a  British  subject  on  the  high 
>eas.  even  though  such  crimes  be  committed  on  the  ship  of  a  foreign 
luuioii.  and  that  inasnnich  as  the  accused,  although  appearing  on 
the   -hii)"s   articlo   under   the   name   of  John    Anderson,   subject   of 


§  1T4.]  VESSELS.  933 

Sweden,  had  declared  that  his  real  name  was  Alfred  Hussey,  and  that 
he  was  a  native  of  Liverpool  and  therefore  a  British  subject,  the  case 
came  within  the  jurisdiction  of  those  courts. 

"  The  matter  is  now  believed  to  have  reached  that  point  in  the  judi- 
cial proceedings  w^here  effective  measures  for  asserting  the  jurisdic- 
tional rights  of  the  United  States  would  be  unavailable  in  this  par- 
ticular case.  And  whilst  I  entertain  no  doubt  that  the  accused  will 
receive  as  fair  a  trial  in  the  high  court  of  Calcutta,  where  it  is  under- 
stood he  is  to  be  tried,  as  he  would  in  the  circuit  court  of  the  United 
States,  in  which  tribunal  he  would  be  arraigned  were  he  sent  here  for 
trial,  I  deem  it  proper,  at  the  same  time,  to  instruct  you  to  bring  the 
question  to  the  attention  of  Her  Majesty's  Government,  in  order  to 
have  it  distinctly  understood  that  this  case  cannot  be  admitted  by  this 
Government  as  a  precedent  for  an}^  similar  cases  that  may  arise  in 
the  future.  Xo  principle  of  public  law  is  better  understood  nor  more 
universally  recognized  than  that  merchant  vessels  on  the  high  seas 
are  under  the  jurisdiction  of  the  nation  to  which  they  belong,  and 
that  as  to  common  crimes  committed  on  such  vessels  while  on  the  high 
seas,  the  competent  tribunals  of  the  vessel's  nation  have  exclusive 
jurisdiction  of  the  questions  of  trial  and  punishment  of  any  person 
thus  accused  of  the  commission  of  a  crime  against  its  municipal  laws; 
the  nationality  of  the  accused  can  have  no  more  to  do  with  the  ques- 
tion of  jurisdiction  than  it  would  had  he  committed  the  same  crime 
within  the  geographical  territorial  limits  of  the  nation  against  whose 
municipal  laws  he  offends.  The  merchant  ship,  Avhile  on  the  high 
seas,  is,  as  the  ship  of  war  is  everywhere,  a  part  of  the  territory  of  the 
nation  to  which  she  belongs. 

"  I  pass  over  the  apparent  breach  of  comity  in  the  proceedings  of 
the  colonial  officials  as  being  rather  the  result  of  inadvertence  and 
possible  misconception  on  the  part  of  the  government  hnv  officer  of 
the  colony,  than  any  design  to  question  the  sovereignty  of  the  United 
States  in  this  or  cases  of  a  similar  nature." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Welsh,  mln.  to  England.  Xo.  328.  July  11. 
1879,  For.  Rel.  1879,  435.  See  also  Mr.  Evarts.  Sec.  of  State,  to  Mi-. 
Welsh,  min.  to  England,  July  29.  1879,  id.  -J4(). 

The  foregoing  argument,  so  far  as  it  rests  on  the  sui>position  that  a  nation 
may  not  punish  its  citizen  for  an  offence  committed  within  the 
geograi)hical  limits  of  iinother  nation,  seems  to  have  involved  an 
oversight,  since  it  is  elementary  that  all  nations  assert  and  to  a 
greater  or  less  extent  exercise  the  right  to  punish  their  citizens  for 
acts  done  abroad :  and  while  the  enforcement  of  this  right  "  may 
give  rise  to  inconvenience  and  injustice  in  many  cases,  it  is  a  matter 
in  which  no  other  nation  has  the  right  to  interfere."  (Mr.  Bayard, 
Sec.  of  State,  to  Mr.  Connery,  charge  at  Mexico,  Nov.  1,  1887,  754, 
For.  Rel.  1887.  754.     See  also  For.  Kel.  1887.  770,  779.) 

See  also  Attorney-General  r.  Kwok-a-Siug,  L.  R.  5  P.  C.  179. 


9H4  XATIOXAL  JURISDICTION  :    TERRITORIAL  LIMITS.  [§  174. 

•*  Her  Majesty's  Government  have  had  under  consideration,  in 
communication  with  the  government  of  India,  the  letter  addressed 
by  Mr.  Welsh  to  my  predecessor  on  the  29th  of  July,  on  the  subject 
of  the  trial  at  Calcutta,  in  January.  1879.  of  one  John  Anderson,  a 
British  subject,  on  the  articles  of  the  American  bark  C.  O.  Whitmore, 
who  Avas  charged  with  having  killed  the  first  officer  of  that  vessel 
while  on  the  high  seas.  In  that  letter,  Mr.  "Welsh  stated  that,  in  the 
opinion  of  the  (rovernment  of  the  United  States,  the  exercise  of 
jurisdiction  in  that  case  by  the  high  court  at  Calcutta  was  a  breach 
of  comity.  He  urged  that  *  as  regards  common  crimes  committed  on 
board  merchant  vessels  on  the  high  seas,  the  competent  tribunals  of 
the  vessel's  nation  have  exclusive  jurisdiction  of  the  question  of  trial 
and  punishment  of  any  person  thus  accused  of  the  commission  of  a 
crime  against  its  municipal  law.' 

"As  regards  the  general  proposition  above  laid  down,  Her  Majesty's 
Government  are  not  prepared  to  admit  that  a  statute  conferring  juris- 
diction on  the  court  of  the  country  of  the  offender  in  the  case  of 
offenses  committed  by  its  own  subjects  on  the  high  seas,  on  board  a 
foreign  vessel,  or  in  places  within  foreign  jurisdiction,  would  violate 
any  principle  of  international  law  or  comity. 

"  On  the  contrary,  they  are  of  opinion  that  there  are  many  cases  in 
which  the  conferring  of  such  jurisdiction  Avould  subserve  the  pur- 
poses of  justice  and  be  quite  consistent  with  those  principles. 

•'  Such  an  assumption  of  jurisdiction  does  not  involve  a  denial  of 
jurisdiction  on  the  part  of  the  state  in  whose  territory  the  offense  was 
committed;  it  involves  no  more  than  an  assertion  of  a  right  of  con- 
current jurisdiction,  and  the  most  eminent  authorities  on  interna- 
tional law  in  this  country,  and  also  in  the  United  States,  lay  down 
that  the  legislative  and  judicial  powers  of  a  state  extend  to  the  pun- 
ishment of  all  offenses  against  its  municipal  laws  by  its  subjects 
wheresoever  committed. 

"  But  as  regards  the  particular  case  of  John  Anderson,  it  appears 
from  a  report  furnished  by  the  government  of  India  that,  in  the 
opinion  of  their  law  officers,  the  high  court  at  Calcutta  had  jurisdic- 
tion to  try  the  accused  by  virtue  of  the  imperial  act  23  and  24  Vic- 
toria, cap.  88.  which  extends  to  Her  Majesty's  territories  in  India  the 
provisions  of  the  act  12  and  13  Victoria,  cap.  96,  *  to  provide  for  the 
prosecution  and  trial  in  Her  Majesty's  colonies  of  offenses  committed 
witliiu  the  jurisdiction  of  the  admiralty.' 

••  The  question  of  jurisdiction  was  not  raised  at  the  trial,  and  no 
decision  Avas  therefore  pronounced  upon  't,  but  Her  Majesty's  Gov- 
ernment are  advised  by  the  law  officers  of  the  Crown  in  this  country 
that  the  jurisdiction  of  the  admiralty  does  not  extend  to  offenses  com- 
mitted on  the  high  seas  in  other  than  British  ships. 

••  It  follows  therefore  from  their  view  of  the  law  that  the  high  court 


§  1~4.]  VESSELS.  935 

at  Calcutta  had  not  jurisdiction  to  try  the  case  and  that  the  trial  was 
a  nullity. 

"  It  further  appears  from  the  report  of  the  government  of  India 
that,  after  the  trial,  the  consul-general  of  the  United  States  applied 
for  the  extradition  of  the  prisoner,  and  was  informed  that  the  gov- 
ernment of  India  were  unable  to  order  the  surrender  of  a  person  on  a 
charge  in  respect  of  which  he  had  been  .dready  tried  and  convicted 
by  a  competent  British  court. 

•'  I  have  the  honor  to  request  that  you  will  express  to  your  Govern- 
ment the  regret  of  Her  Majesty's  Government  that  the  action  of  the 
iiuthorities  at  Calcutta,  in  the  case  of  John  Anderson,  should  have 
been  governed  by  a  view  of  the  law  which,  in  the  opinion  of  Her 
Majest^-'s  Government,  can  not  be  supported,  and  I  trust  that  you  will 
L'onvey  to  them  the  assurance  that  Mr.  Evarts  has  justly  attributed 
this  incident  to  a  misconception  and  not  to  any  design  to  question  the 
jurisdiction  of  the  United  States  in  this  or  any  similar  case." 

Earl  Granville.  Sec.  for  For.  Afif.,  to  Mr.  Lowell,  miu.  to  England,  June 
8,  1880,  For.  Rel.  18.S0.  481. 

The  Government  of  Chili  has  no  jurisdiction  over  a  merchant  vessel 
of  the  United  States  on  the  high  seas  so  as  to  enable  it  to  proceed 
against  that  vessel  or  its  officers,  when  in  a  Chilian  port,  for  cruelty 
on  the  high  seas  to  a  Chilian  subject  on  board  that  vessel. 

Mr.  Frelingluiysen.  See.  of  State,  to  Mr.  Logan,  Oct.  15,  188.3.  MS.  Inst. 
Chile,  XVII.  118. 

The  courts  of  the  United  States  have  no  jurisdiction  to  redress 
any  supposed  torts  conunitted  on  the  high  seas  upon  the  proi:)erty  of 
its  citizens  by  a  cruiser  regularly  commissioned  by  a  foreign  and 
friendly  power,  except  where  such  cruiser  has  been  fitted  out  in  viola- 
tion of  its  neutrality.  The  courts  of  the  captors  are  open  for  redress, 
and  an  injured  neutral  may  there  obtain  indemnity  for  a  wanton  or 
illicit  capture.  Xor  is  the  jurisdiction  of  the  neutral  court  enlarged 
by  the  fact  that  the  corpus  no  longer  continues  under  the  control  of 
the  capturing  power.  The  Estrella.  -i  AMieat.,  208. 
2.  Ilalleck's  Int.  Law,  .'Jrtl  ed..  by  Raker,  II.  178-174. 

*•  Since  our  last  meeting  the  aspect  of  our  foreign  relations  has  con- 
siderably  changed.     Our   coasts   have   Ix'en   infested 
"^''^'  and  our  harbors  watched  by  private  armed   vessels, 

some  of  them  without  commissions,  some  with  illegal  commissions, 
others  with  those  of  legal  form,  but  committing  piratical  acts  l)eyond 
the  authority  of  their  commissions.  They  have  captured  in  the  very 
entrance  of  our  harbors,  as  well  as  on  the  high  seas,  not  only  the  ves- 
sels of  our  friends  coming  to  trade  with  us.  but  our  own  also.     They 


93()  NATIONAL  JURISDICTION  :    TERRITORIAL  LIMITS.  [§  IT-l- 

have  carricnl  them  off  iiiKler  pretense  of  legal  adjudication,  but  not 
daring  to  approach  a  court  of  justice,  they  have  plundered  and  sunk 
them  bv  the  way.  or  in  obscure  places  where  no  evidence  could  arise 
against  them:  maltreated  the  crews,  and  abandoned  them  in  boats  in 
open  sea  or  on  desert  shores,  without  food  or  covering.  These  enor- 
mities appearing  to  be  unreached  by  any  control  of  their  sovereigns. 
I  found  it  necessary  to  equip  a  force  to  cruise  within  our  own  seas,  to 
arrest  all  vessels  of  these  descriptions  found  hovering  on  our  coast 
within  the  limits  of  the  Gulf  Stream,  and  to  bring  the  offenders  in 
for  trial  as  j)irates.*" 

I'resident  Jefferson,  annual  messajje.  1805. 

Murder  or  robl:>ery  committed  on  the  high  seas  ma}"  be  cognizable 
by  the  courts  of  the  United  States,  though  committed  on  board  of  a 
vessel  not  belonging  to  citizens  of  the  Ignited  States,  if  she  had  no 
national  character,  but  was  held  and  possessed  by  pirates  or  persons 
not  lawfully  sailing  under  the  flag  of  any  foreign  nation. 

Uuitetl  States  r.  Holmes.  5  Wheatou.  412. 

This  rule  is  peculiar  to  the  offence  of  piracy  by  law  of  nations,  which  is 
justiciable  in  the  courts  of  any  country. 

'•  It  is  natural  to  consider  the  vessels  of  a  nation  as  parts  of  its  ter- 
ritory, though  at  sea,  as  the  state  retains  its  jurisdic- 

reign    ^j^^^    over   them;    and,   according   to   the   commonlv 
waters.  .  ...... 

received  custom,  this  jurisdiction  is  preserved  ovtn* 

the  vessels  even  in  parts  of  the  sea  subject  to  a  foreign  dominion. 
This  is  the  doctrine  of  the  law  of  nations,  clearly  laid  down  by 
writers  of  received  authority,  and  entirely  conformable,  as  it  is  sup- 
posed, with  the  practice  of  modern  nations.  Tf  a  nuirder  be  com- 
mitted on  board  of  an  American  vessel  by  one  of  the  crew  upon 
another  or  upon  a  passenger,  or  by  a  passenger  on  one  of  the  crew 
or  another  i)assenger.  while  such  vessel  is  Iving  in  a  port  within  the 
jurisdiction  of  a  foreign  state  or  sovereignty,  the  offence  is  cogniza- 
ble and  puni>hable  by  the  pro])er  court  of  the  United  States  in  the 
same  manner  as  if  such  offence  had  been  committed  on  board  the  ves- 
sel on  the  high  seas.  The  law  of  England  is  su])posed  to  be  the 
same.  Tt  is  true  that  the  jurisdiction  of  a  nation  over  a  vessel 
belonging  to  it.  while  lying  in  the  ])ort  of  another,  is  not  necessarily 
wliolly  exclusive.  AVe  do  not  so  consider  or  so  assert  it.  For  any 
unhnvful  acts  done  by  her  while  thus  lying  in  port,  and  for  all  con- 
tracts enter<'d  into  wliile  there.  l)v  her  masters  or  owners,  she  and  they 
mu>t.  doubtless.  Ix^  answerable  to  the  laws  of  the  place.  Nor.  if  her 
master  or  crew.  Avhile  on  board  in  such  port,  break  the  peace  of  the 
conununity  by  the  conunission  of  crimes,  can  exemption  be  claimed 
for  them.     But.  nevertheless,  the  law  of  nations,  as  I  have  stated  it, 


§  1T4.]  VESSELS.  937 

and  the  statutes  of  governments  fomuled  on  that  law.  as  I  have 
referred  to  them,  show  that  enlightened  nations,  in  modern  times,  do 
clearly  hold  that  the  jurisdiction  and  laws  of  a  nation  accompany  her 
ships  not  only  over  the  high  seas,  but  into  ports  and  harbors,  or 
Avheresoever  else  they  may  be  water-borne,  for  the  general  purpose 
of  governing  and  regulating  the  rights,  duties,  and  obligations  of 
those  on  board  thereof,  and  that,  to  the  extent  of  the  exercise  of  this 
jurisdiction,  they  are  considered  as  parts  of  the  territory  of  the 
nation  herself."" 

Mr.  Webster.  See.  of  State,  to  Lord  Asbhurton,  Britisb  iiiin..  Aug.  1,  1842. 
Webster's  Works,  VL  .3(K>-807.  cited  hi  United  States  r.  Rodgers 
(1893),  15()  U.  S.  249.  2<>4. 

In  18G8  James  Anderson,  a  citizen  of  the  United  States,  was 
indicted  for  murder  committed  on  board  a  British  vessel.  The  ves- 
sel, when  the  offense  was  committed,  was  45  miles  up  the  river 
Garonne,  in  France,  in  the  body  of  the  country,  though  within  the 
ebb  and  flow  of  the  tide.  The  prisoner  was  convicted  in  the  central 
criminal  court  of  London  of  manslaughter.  The  vessel,  thouofh  flv- 
ing  the  Briti.sh  flag,  belonged  to  Yarmouth.  Xova  Scotia,  and  it  was 
contended  that  as  the  offence  Avas  committed  in  France  and  the  vessel 
was  a  colonial  vessel  and  the  prisoner  an  American  citizen  the  court 
had  no  jurisdiction  to  try  him.  It  was  held  that  he  was  properly 
convicted. 

Reg.  V.  Anderson  (180.8).  11  f'ox  C.  C.  108.  It  was  admitted  by  tbe 
judges  tbat  tbe  Frenob  coui'ts  bad  a  concurrent  jurisdiction  wbicb 
tbey  niigbt  bave  exercised  liad  tbey  claimed  it. 

By  section  5340.  Revised  Statutes  of  the  United  States,  it  is  pro- 
vided that  ''  every  person  who.  upon  the  high  seas,  or  in  any  arm  of 
the  sea.  or  in  any  river,  haven,  creek,  basin,  or  bay,  within  the  admi- 
ralty jurisdiction  of  the  United  States,  and  out  of  the  jurisdiction  of 
any  j^articular  State,  on  board  any  vessel  belonging  in  whole  or  in 
part  to  the  Ignited  States,  or  any  citizen  thereof,  with  a  dangerous 
wea])on.  or  with  intent  to  pei'ix'trate  any  felony,  conunits  an  assault 
on  another  shall  l)e  punished  by  a  fine  of  not  more  than  three  thousand 
dollars  and  by  imprisonment  at  hard  labor  not  more  than  three  years."" 
Under  this  section  the  courts  of  the  Ignited  States  have  jurisdiction 
to  try  a  j^erson  for  an  assault,  with  a  dangerous  wea])on.  committed 
on  a  vessel  belonging  to  a  citizen  of  the  United  States.  Avhen  such 
vessel  is  in  tlie  Detroit  River,  out  of  the  jurisdiction  of  any  ]iarricular 
State,  and  Avithin  the  territorial  limits  of  the  Dominion  of  Canada. 

United  States  r.  Rodgers  (189.'^).  ^^,0  V.  S.  249.  252.  200.  An  indictment 
for  murder  wbicli  cbarges  tbat  tlie  offence  was  committed  on  an 
American  vessel  on  tbe  bigb  se;is.  witbin  tbe  jurisdiction  of  tbe  court 
and   witbin   tbe   admiralty   and   maritime  jurisdiction  of  tbe   United 


938  NATIONAL  JURISDICTION  :    TERRITORIAL  LIMITS.  [§  174. 

States,   suttii-ieiitly   avers   the   loeality  of  the  offence.     (St.   Chiir  v. 
I'liited  States   (I.SIH),  154  T'.  S.  184.) 
In    United    States    r.    liodf^ers,    supra,    the   court   disapproved    I'eople   v. 
Tyler,  7  Mich.   ic.l.     See  United  States   r.  Wiltherper,  5  Wheat.  76; 
Tlionias  r.  Lane.  -  Sunni.  1  ;  United  States  v.  Coombs,- 12  I*et.  72. 

A  defoiulaiit  -was  indicted  in  tlie  c-irciiit  court  of  the  United  States 
at  Philadeli^hia  for  nnirder.  It  appeared  that  he  A^■\ls  mate  of  the 
American  hv\g  Rarer:  that  ^vhile  the  brig  lay  at  Cape  Francois  he 
deah  the  master  a  blow  Avith  a  piece  of  wood,  and  that  the  master, 
being  taken  on  shore,  died  there  the  next  day.  It  Avas  contended 
that  in  order  to  give  the  court  jurisdiction  under  the  eighth  section 
of  the  crimes  act  both  the  death  and  the  bknv  must  occur  on  the  high 
seas. 

Peters,  J.,  said  that  both  the  stroke  and  the  conse<iuent  death  must 
liappen  on  the  high  seas. 

Mr.  Justice  AVashington  took  the  same  view. 
United  States  r.  Mcdill   (18(M;),  4  Dallas,  42(i. 

AVhere  a  gun  Avas  fired  from  an  American  ship  lying  in  a  harbor  of 
one  of  the  Society  Islands,  killing  a  jjerson  on  board  a  schooner  be- 
longing to  the  natives  in  the  harbor,  it  Avas  held  by  Judge  Story  that 
the  act  Avas.  in  contemplation  of  hnv,  committed  on  board  the  foreign 
schooner  Avhere  the  shot  took  etfect,  and  that  jurisdiction  of  the  otfense 
belonged  to  the  foreign  government  and  not  to  the  courts  of  the 
United  States.  AVhere  a  {prisoner  imder  such  circumstances  Avas 
sent  home  for  trial,  it  was  held  that  the  court  had  no  jurisdiction. 
United  States  r.  Davis,  2  Sunnier,  482. 

An  action  for  damages  Avas  brought  for  the  negligent  killing  of  a 

person  on  a  Aessel  hailing  from  and  registered  in  a 

Civil  liabilities  on  t-      j^  ^^       ^i.    .         £   x-  a.-      i  i  i    i  i- 

i)ort  ot  the  i>tate  of  >,eAV    i  ork  and  owned  by  citi- 

American  vessels.      '  .       ,  ,  .  .  " 

zens  thereof.     The  action  Avas  brought  in  a  court  of 

the  State  of  Xcav  York,  and  in  v)rder  to  maintain  it  it  Avas  necessary 
to  show  that  the  statute  of  the  Slate,  by  Avhich  sucli  a  right  of  action 
was  given.  Avas  o[)erative  on  board  the  vessel  on  the  high  seas.  It  Avas 
admitted  that,  if  the  (juestion  had  arisen  under  the  hiAVS  of  the 
United  Stales,  the  principle  that  a  shij)  on  the  high  seas  is  con- 
structively a  i)art  of  the  territory  of  the  nation  to  Avhich  she  belongs 
would  be  aj)i)licable;  but  it  was  denied  that  the  State  of  Ncav  York 
could  be  regarded  as  a  sovereignty  Avhose  laws  followed  her  till  she 
came  within  the  jurisdiction  of  another  government.  The  court 
said  that,  in  respect  of  crimes  connnitted  on  the  high  seas,  the  power 
to  pi-o\ide  for  their  punishment  had  been  delegated  to  the  Federal 
(lovernment.  so  that  State  hiAvs  could  not  be  applicable  to  them;   but, 


|J  1T4.]  VESSELS.  939 

on  the  strength  of  Crft|jo  r.  Kelly,  10  Wall.  CIO,  the  court  held  that 
"  civil  rights  of  action  for  matters  occurring  at  sea  on  board  of  a 
vessel  belonging  to  one  of  the  States  of  the  Union  must  depend  upon 
the  laws  of  that  State,  unless  they  arise  o«t  of  some  matter  over 
A'hich  jurisdiction  has  been  vested  in  and  exercised  by  the  Government 
of  the  United  States,  or  over  which  the  State  has  ttansferred  its 
rights  of  sovereignty  to  the  United  States:  and  that  to  this -extent 
the  vessel  must  be  regarded  as  part  of  the  territory  of  the  State,  whiie 
in  respect  to  her  relations  with  foreign  governments,  crimes  com- 
mitted on  board  of  her,  and  all  other  matters  over  which  jurisdiction 
is  vested  in  the  Federal  Government,  she  must  be  regarded  as  part 
of  the  territory  of  the  United  States  and  subject  to  the  laws  thereof. 
.  .  .  The  jurisdiction  of  the  States  and  of  the  United  States  in 
the  matter  of  personal  torts  committed  at  sea  .  .  .  are 'concurrent, 
though  remedies  by  proceedings  //;  r(^/;i  can  be  administered 
only  by  the  courts  of  admiralty  of  the  United  States.  The  field  of 
legislation  in  respect  to  cases  like  the  present  one  has  not  been  occu- 
pied by  the  General  Government  and  is  therefore  open  to  the  States." 

McDonald  r.  .MuUory  (1879),  77  N.  Y.  540.  See  1  Beale's  Cases  on  the 
Conflict  of  Laws,  51. 

In  the  case  of  Kelly  v.  Crapo,  16  Wall.  610,  reversing  Kelly  v.  Crapo,  45 
N.  Y.  86.  a  citizen  of  Massachusetts  owning  a  ship  which  was  reg- 
istered in  ^Massachusetts,  but  which  was  at  the  time  on  the  high 
seas,  was  adjudged  insolvent  in  that  State  and  all  his  property  was 
judicially  transferred  to  an  a.ssignee  in  insolvency.  It  was  held 
that  the  ship  therefore  could  not  be  attached  in  New  I'ork  in  a  suit 
subse<iuently  brought  against  the  insolvent  by  a  New  York  creditor. 
See  Dicey  on  the  Conflict  of  Laws,  Moore's  American  Notes,  357. 

By  sec.  5576,  R.  S.,  '*  all  acts  done,  and  offenses  or  crimes  com- 
mitted," on  a  guano  island  appertaining  to  the 
United  States,  or  in  the  waters  adjacent  thereto, 
are  "  deemed  committed  on  the  high  seas,  on  board  a  merchant-ship 
or  vessel  belonging  to  the  United  States,"  and  are  punishable  '*  ac- 
cording to  the  laws  of  the  United  States  relatin.g  to  such  ships  or 
vessels  and  offences  on  the  high  seas."  The  offense  may  be  tried, 
inider  sec.  780,  R.  S.,  in  the  ''  district  where  the  offender  is  found,  or 
into  which  he  is  first  brought." 

Jones  r.  Fnited  States,  137  U.  S.  202,  11  S.  Ct.  80:  Smith  r.  United 
States,  137  U.  S.  224,  11  S.  Ct.  88;   Key  v.  United  States,  ibid. 

o 


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